- (1.) THE present appeal has been filed under Section 32(9) of the Rajasthan Financial Corporation Act, 1951 (hereinafter referred to as 'the said Act') by the appellant-original respondent challenging the order dated 28.3.06 passed by the District Judge, Tonk (hereinafter referred to as 'the court below') in Civil Application No. 42/02 filed by the respondent No.1-Corporation (original applicant) under Section 31(1)(a) of the said Act whereby the court below has allowed the said application of the respondent No.1.
(2.) THE short facts giving rise to the present appeal are that pursuant to the application made by the appellant, the respondent No.1-Corporation had sanctioned the loan to the tune of Rs. 3,60,000/- for permanent assets and Rs. 1,88,000/- for working capital in favour of the appellant-industrial concern. According to the appellant, out of the said sanctioned amount of loan only Rs. 2,69,000/- was paid against the permanent assets i.e. plant and machinery and amount of Rs. 30,000/- was paid against the working capital loan to the appellant. THEre being default in making the repayment of the said loan, the respondent-Corporation had initiated action against the appellant under Section 29 of the said Act. According to the appellant, since the respondent-Corporation did not disburse the entire loan amount sanctioned by it, the appellant could not continue with the production in the said unit and suffered damages for which the appellant had filed civil suit being No. 23/98 in the court of District Judge, Tonk. THEreafter the respondent-Corporation submitted an application under Section 31(1) before the court below against the present appellant and the respondent No.2, seeking attachment and sell of the property mentioned in the application for the recovery of the dues to the tune of Rs. 6,35,237/- with interest. In the said application, the respondent No.2 who was the mortgagor and also the owner of the said property in question did not appear though duly served. THE said application before the court below was contested by the appellant herein. THE court below vide the impugned order dated 28.3.06 allowed the said application of the respondent No.1. Being aggrieved by the said order the present appeal has been filed by the appellant. At the outset, it is required to be stated that though the impugned order is dated 28.3.06, there is no interim order passed by this court till this date, staying the operation and the execution of the said order. It is also pertinent to note that the respondent No.2 whose property was sought to be sold as having been mortgaged with the respondent No.1-Corporation, has chosen to remain absent though duly served in the present appeal. Under the circumstances, the preliminary objection was raised by the learned counsel for the respondent No.1-Corporation that the present appeal at the instance of the appellant is not maintainable. The said objection of the learned counsel for the respondent No.1 cannot be accepted. In this regard, it may be stated that as per Section 32(9) of the said Act, any party aggrieved by the order passed under sub-section 7 of Section 32 can file appeal to the High Court. The impugned order having been passed by the court below being an order confirming the order of attachment and directing the sale of the mortgaged property, the said order could be challenged by the appellant, who was the borrower, and for whom the property was mortgaged by the respondent No.2 though the respondent No. 2 has not preferred to file any appeal. It has been submitted by the learned counsel Mr. S.C. Gupta for the appellant that the property in question was not mortgaged with the respondent No.1-Corporation and, therefore, the application under Section 31 of the said Act was not maintainable. He also submitted that the application of the respondent No.1-Corporation was time barred inasmuch as the application was not filed within a period of 3 years from the date of accruing the cause of action. Mr. Gupta has relied upon the judgment of Apex Court in the case Maharashtra State Financial Corporation Vs. Ashok K. Agarwal & Ors. AIR 2006 SC 1584 and M/s. Ormi Textiles & Anr. Vs. State of U.P. & Ors. AIR 2008 SC 2177 in support of his submission. He also submitted that the observations made by the court below as regards the right of the respondent-Corporation provided under Section 31 of the said Act were incorrect and illegal and therefore, the said order deserves to be set aside. As against that the learned senior counsel Mr. Virendra Lodha for the respondent No.1-Corporation relying upon the provisions contained in Section 29 and 31 of the said Act submitted that after availing the remedy under Section 29 of the said Act by selling the plant and machinery of the industrial unit, the respondent-Corporation has filed the application under Section 31 of the said Act for the recovery of the balance due amount against the appellant who was the borrower and the respondent No.2 who was the mortgagor and who had mortgaged the property in question by way of security. Placing reliance on the documents produced before the court below, the learned counsel has submitted that the respondent No.2 having failed to contest the application before the court below, the court below has rightly passed the order allowing the application of the respondent No.1-Corporation to proceed with the proceedings under Section 31 of the said Act. Having regard to the submissions made by the learned counsels for the parties and to the impugned order, in the light of the provisions of the said Act, it transpires that the respondent-Corporation had submitted an application under Section 31(1)(a) of the said Act seeking attachment and sell of the properties belonging to the respondent No.2, who had mortgaged the said property with the respondent No.1-Corporation by way of security for securing the loan amount advanced to the appellant. As rightly submitted by the learned counsel for respondent No.1 relying upon the decision of the Apex Court in case of KSIDC Ltd. Vs. S.K.K. Kulkarni & Ors. 2009 (2) SCC, 236, once there is default in payment of loan it is for the Corporation to decide as to whether it shall proceed under Section 29 of the said Act or shall take recourse to Section 31. In the instant case, the respondent-Corporation had already exhausted the remedy under Section 29 of the said Act and had filed the application under Section 31 of the said Act for the recovery of the dues of the appellant No.1. Hence, such an action was maintainable in the eye of law.
(3.) THERE is also no substance in the submission made by the learned counsel Mr. Gupta for the appellant that the said property was not mortgaged with the respondent-Corporation. As transpiring from the impugned order itself as well as from the documents on record, the respondent No.2 Kamlesh Kumar had mortgaged the said property with the respondent No.1-Corporation by way of security towards the loan advanced to the appellant. As stated hereinabove, the respondent No.2 had not come forward to contest either the application before the court below or in the present appeal. If the said property belonging to the respondent No.2, was not mortgaged, he would naturally be aggrieved and would have rushed to the court for contesting the appeal. That being not the case, the application made by the respondent-Corporation, has been rightly allowed by the court below. The court below having taken into consideration all the evidence on record as also the legal and factual aspects of the matter, while passing the impugned order, such order does not call for any interference by this court. There being no illegality or infirmity in the order passed by the court below, the appeal deserves to be dismissed and is accordingly dismissed.;