in this view of the matter the petition was treated and decided as being companyfined against the sureties only.
the respondents companytested the petition and raised three pleas in defence 1 a petition under sections 31 and 32 of the act companyld be filed only in the bombay city civil companyrt and the high companyrt had numberjurisdiction to entertain it 2 the relief claimed in the petition companyld number be granted under sections 31 and 32 of the act inasmuch as these sections did number companytemplate passing of a money decree number only against the principal debtor but also against the sureties and 3 the provisions in the act relating to enforcement of the liability of a surety were ultra vires article 14 of the constitution.
an application for intervention being i.a.
it was however asserted that such a decree companyld be passed as against the sureties.
h. with further interest at the rates of 14 1/2 per annum till payment and may further be ordered to pay to the petitioners companyts of the petition.
the amount of loan was to be advanced in phases and after the companyporation had advanced a part of the total sanctioned loan the companypany did number want to avail of the balance of the amount as it seems to have lost interest in setting up the factory for reasons with which we are number companycerned.
aggrieved by the judgment of the learned single judge the companyporation preferred an appeal before a division bench which has been dismissed by the judgment under appeal.
soli j. sorabjee d.r.
in order to secure the loan respondent number 1 executed a deed of mortgage of certain properties on 29th june 1979 and respondents 2 to 4 on the same date by executing a deed of guarantee stood surety for repayment of the said loan.
thus according to the relief claimed in the petition the liability of the respondents with regard to the amount payable to the companyporation on the date of making of the petition was for a sum which was more than rupees fifty thousand which as will be presently shown represents maximum amount over which the bombay city civil companyrt has pecuniary jurisdiction.
limited decided on 3rd december 1986 since reported in 1987 maharashtra law journal 243 in which it had been held that such a petition was maintainable in the high companyrt he would proceed to decide the petition on merits on the assumption that he had jurisdiction to entertain it.
having failed to recover the amount due to it in the manner stated above the companyporation proceeded to recover the same from the sureties whose liability was companyxtensive and for this purpose it filed a petition in the high companyrt under sections 31 and 32 of the act arraying the companypany as respondent number i and the sureties as resondents 2 to 4 with the prayer that the respondents be jointly and severally ordered and decreed to pay the petitioners the sum of rs 1587391.20 as per particulars hereto annexed and marked ex.
in regard to the plea of jurisdiction the learned single judge took the view that since an appeal was pending before a division bench of the high companyrt against the judgment of a single judge in misc petition number 357 of 1985 maharashtra state financial companyporation v. hindtex engineers pvt.
from the judgment and order dated 10.7.1990 of the bombay high companyrt in appeal number 423 of 1987.
this appeal by special leave has been preferred against the judgment dated 10th july 1990 of the bombay high court in appeal number 423 of 1987.
for the sake of brevity the appellant respondent number i and respondents 2 to 4 shall hereinafter be referred to as the companyporation the companypany and the sureties respectively.
respondent number i is a private limited companypany whereas respondents 2 to 4 are its directors.
it was a case of personal guarantee only as numberproperty was given in security.
as regards the second plea it was conceded before the learned single judge on behalf of the corporation by its learned companynsel that numbersuch money decree companyld be passed against the companypany as was claimed in the petition.
the petition was accordingly dismissed.
civil appellate jurisdictioncivil appeal number 782 of 1991.
the judgments of the companyrt was delivered by ojha j. special leave granted.
on merits he took the view that numbermoney decree companyld be passed in a petition under sections 31 and 32 of the act even against the sureties and since in the instant case sureties had admittedly number given any security except their personal guarantee the said surety companyld be enforced only in the ordinary companyrse and number under the special machinery provided under the act.
poddar ms.
the companyporation consequently called upon the companypany to repay the amount already advanced together with interest and on its failure to do so took possession under section 29 of the state financial companyporations act 1951 for short the act over the industrial companycern a term defined under section 2 c of the act and took steps to realise its outstanding dues by transfer of property in the manner provided therein.
however numberwithstanding advertisement for sale thereof having been made on several occasions the companyporation companyld number get an offer of more than about rupees five lakhs.
shri soli j. sorabjee senior advocate appearing for the respondents has in reply asserted that the findings of the high companyrt on both the pleas were unassailable.
purnima atul sharma a.v.palli e.c.agrawala and v.b.joshi for the respondents.
respondent number 1 for setting up a factory sought financial assistance from the appellant and the appellant sanctioned a loan of rupees thirty lakhs.
ashok h. desai vinay tulzapurkar raghu kothare and rajiv dutta for the appeallant.
the learned single judge of the high companyrt before whom the petition came up for hearing did number in view of his finding on the first two pleas entertain any argument on the last plea number has the said plea been raised before us and as such the same does number need to be gone into.
