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2016 DIGILAW 270 (KAR)

Tirupathi Stone Industries Private Limited, Rajmahal Vilas Extension, Bangalore v. Karnataka State Financial Corporation, Bangalore

2016-03-16

A.S.BOPANNA

body2016
ORDER : Mr. A.S. Bopanna, J. The petitioners are before this Court assailing the order dated 21-4-2014 passed by Principal District Judge, Mangaluru, Dakshina Kannada in Misc. No. 11 of 2010, dated 21-4-2014 impugned at Annexure-N to the petition. 2. Petitioner No. 1 had secured certain financial assistance from the respondent-Corporation. The respondents contend that petitioners 2 to 5 had offered guarantees in respect of loan. In that light, the respondents after having exercised its power available under Section 29 of the State Financial Corporations Act, 1951 ('the Act' for short) had thereafter instituted a petition under Section 31(1)(aa) of the said Act for quantification of the amount for recovery as against the guarantors. The Principal District Judge by the order on LA. No. 2 wherein the petitioners had sought for a direction to the respondents to take back the case and present it before the Civil Court at Bengaluru, dismissed the said application rejecting the contention of the petitioners herein. It is in that view, the petitioners are before this Court assailing the said order. 3. Learned Counsel for the petitioners would refer to the provision contained in Section 31(1) of the Act to point out that the phrase used in the said section is "carries on the business". In that light, he contends that as on the date the petition under Section 31 was presented by the respondent-Corporation before the District Judge at Mangaluru, the respondent-Corporation had already exercised its right under Section 29 of the Act and had sold the industrial concern. If that be the position, it is his contention that the first petitioner was not carrying on its business at Mangaluru as on the date the petition was presented and therefore the Court at Mangaluru did not have jurisdiction. It is therefore contended that the Court below though having noticed the provision, has wrongly understood the decision cited before it in the case of Karnataka State Industrial Investment and Development Corporation limited v. S.K.K. Kulkarni and others, AIR 2009 SC 1713 From the said decision, the learned Counsel attempts to point out that the Hon'ble Supreme Court had only slated with regard to the jurisdiction in a circumstance where the business was being carried on and not in a circumstance where the industrial concern had ceased to carry on its activity. In that light, it is contended that in the instant case, the petitioners are all residing at Bengaluru and the property offered under the guarantee is also located in the Bengaluru and as such the Court at Mangaluru did not have jurisdiction over the same. 4. Learned Counsel for the respondent-Corporation would however point out that at the first instance, the respondent-Corporation had in fact filed a petition at Bengaluru, but having noticed the decision in the case of S.K.K. Kulkarni, wherein a similar consideration had been made and in the said case, in a similar circumstance, the Corporation had been directed to file the petition at Belagavi though initially it was filed in Bengaluru. Hence, the respondent-Corporation had sought leave to withdraw the same and file it before the Court at Mangaluru. It is in that view contended that in such circumstance, the petitioners cannot once over again contend that the Court at Mangaluru did not have jurisdiction to entertain the same. 5. Before considering the rival contentions, it is also appropriate to notice the decisions relied on by the learned Counsel for the petitioners in the case of Subhransu Sekhar Padhi v. Gunamani Swain and others, (2014) 12 SCC 368 , and in the case of Deepak Bhandari v. Himachal Pradesh State Industrial Development Corporation Limited, in Civil Appeal No. 1019 of 2014. Having referred to the said decisions, it is clear that the said decisions are not directly on the question that is being posed for consideration in the instant case but had been relied only to indicate the circumstances under which the Corporations can avail their alternate remedies of filing a petition under Section 31(1) of the Act and in that light to contend that when power under Section 29 of the Act is invoked earlier, the industrial concern will not exist. 6. Therefore, at this juncture, what is necessary to be considered herein is only as to whether the Court below while disposing of the application in I.A. No. 2 had considered the provision contained in Section 31(1) of the Act in the background of the decision of the Hon'ble Supreme Court in the case of S.K.K. Kulkarni in its correct perspective. 7. 7. In order to appreciate that aspect of the matter, a perusal of the provision contained in Section 31 no doubt would indicate that the right provided to the Financial Corporation to initiate a proceedings under Section 31(1) is in addition to the provision contained in Section 29 of the Act as against the industrial concern. The provision no doubt would indicate that if such right as provided under Section 31(1) is exercised, a petition is required to be presented to the District Judge within the limits of whose jurisdiction the industrial concern carries on the whole or a substantial part of its business, for one or more of the relief’s stated therein. 8. In the instant facts, there is no dispute to the fact that even before invoking the right to seek remedy as provided under Section 31(1), the respondent-Corporation has already invoked the provision under Section 29 and it is in that view, the activities of the industrial concern run by the first petitioner at Mangaluru had come to an end as on the date of filing of the petition under Section 31 (1) of the Act. Therefore, the factual situation is that the activity of the industrial concern of the petitioners was not being carried on at Mangaluru. 9. Even if that be the position also, I am of the opinion that the petition would still have to be presented to the District Judge in whose jurisdiction the industrial concern was carrying on its business before the provision under Section 29 was invoked. I am of the said opinion for the reason that the relief available under Section 31(1) is an additional relief that had been granted and in a situation where the Corporation would invoke the said provision even prior to the remedy under Section 29, the place where it is to be presented is specified by using the phrase 'carries on the industrial concern' since the possibility of the mortgaged property could be at a different place. 10. If that be the position, the right to institute the petition if invoked thereafter would not take away the jurisdiction. In that background, reference should be to the position when the industrial concern was being carried on at a place when the financial transaction was entered into between the financial Corporation and the industrial concern. 10. If that be the position, the right to institute the petition if invoked thereafter would not take away the jurisdiction. In that background, reference should be to the position when the industrial concern was being carried on at a place when the financial transaction was entered into between the financial Corporation and the industrial concern. This is for the reason that the situation may alter thereafter depending on the provision that may be invoked by the financial Corporation. If in that light, the decision of the Hon'ble Supreme Court referred to and relied on by the Court below is taken into consideration, that was also a case wherein the provision under Section 29 had been invoked and the industrial concern was not carrying on its business as on the date the consideration was made by the Hon'ble Supreme Court. In that situation also, the Hon'ble Supreme Court was of the opinion that the petition is to be presented to the District Judge wherein the industrial concern was situate at the earlier point. Therefore, I am of the opinion that the Court below has not committed any error in rejecting the application filed by the petitioners herein. 11. The petition is disposed of accordingly, as being devoid of merit.