- (1.) The above noted revision petition was initially preferred as an appeal vide C.M.A. No. 35/96 under Section 32 (9) of the State Financial Corporation Act, 1951 (hereinafter referred as the "Act of 1951") against the Order dated 19-12-1995, passed by the learned District Judge, Jaipur City, Jaipur in Civil Execution Case No. 19/87. On 19th April 1996 the learned counsel for the parties were directed to address arguments regarding the maintainability of the appeal under the Act. During the course of hearing, Shri Mandhana, learned counsel for the appellant had stated at the bar that the said appeal may be treated as revision against the Order dated 19-12-1995 passed by the learned District Judge, Jaipur City, Jaipur instead of appeal. He had further stated that under a bona fide belief that appeal was maintainable under the Act, he had preferred the appeal, but subsequently it transpired that revision should have been filed instead of appeal. He had further stated at the bar that it is a settled practice of law that in order to save limitation and when the case has to be heard and decided on merits and under a bona fide mistake, the proper remedy has not been adopted and which if availed of at such later such would result in making the matter barred by limitation, the limitation should not come in the way of the petitioner and for this reason the appeal should be treated as revision in the interest of justice. Shri S.M. Mehta, learned counsel for the respondent, while controverting the contentions advanced by the learned counsel for the appellant regarding maintainability of the revision stated that revision is barred by limitation, if the present appeal is permitted to be converted into a revision petition the same would attract the bar of limitation and as such the request of the appellant should not be permitted at this stage. This Court after hearing the learned counsel for the parties and regard being had to the interest of justice was of the view that the appeal should be converted into a revision and it was accordingly treated and registered as a revision petition and the learned counsel for the parties were directed to address their arguments against the impugned order, passed by the trial court as referred to above.
(2.) The case of the petitioner judgment debtor in short is that the M/s. Man Industrial Corporation Ltd. a public limited company (hereinafter referred to as the Company) had secured a loan from respondent R.F.C. (hereinafter referred to as the corporation) of Rs. 10 lacs and Rs. 4.66 lacs totaling Rs. 14.66 lacs on 11-8-1962 and 2010-1966 respectively.
(3.) The aforesaid loans were obtained by the petitioner-company by executing two separate mortgage deeds in favour of the corporation. The rate of interest as against both the mortgage deeds executed in favour of the corporation was agreed between the parties as against first loan at 7.50 per cent with half yearly rest and @3 per cent above the bank rate prevailing from time to time subject to minimum of 8.50 per cent with half yearly rest as against the second loan. In discharge of its liability the company paid Rs. 6.37 lacs towards the principal amount as against the first loan and a sum of Rs. 1 lac towards the second loan i.e. 7.37 lacs in all. It has been further contended on behalf of the petitioner that over and above the amount, the company had further paid a sum of Rs. 5.07 lacs as interest towards the first loan and Rs. 2.58 lacs as interest towards the second loan. Thus the total payments made by the company towards the principal sum of the two loans comes to Rs. 7.37 lacs and Rs. 7.65 lacs as interest making an aggregate of Rs. 15.02 lacs in all during the period 1962 to 23-12-1975. M.I.C. could not pay the balance of loans due to unavoidable circumstances.;