2003 Supreme(Kar) 301
Karnataka High Court
N.Narasimahaiah - Appellant
Versus
Karnataka State Financial Corporation - Respondent
Decided On : 03-26-03
W.P. : 37209 of 2000
A.G.Shivanna, B.N.Jayadeva, B.S.Radhanandan, B.S.Srikantalah, H.S.Sathlsh Kumar, K.Gopal Hegde, L.M.Chidanandayya, M.C.Jayakirthi Appaji
Headnote:Remedy of the lender against the surety
STATE FINANCE CORPORATION ACT, 1951 - Sections 31 and Action against the surety -Corporation should proceed under the section -its remedy is not under Section 29.
[R. V. Raveendran & K. L. Manunath, JJ.] -So far as the property of the surety which is secured in favour of the State Finance Corporation, the remedy of the corporation lies either under Section 31 of the Act or by having recourse to civil court and not by recourse to Section 29 of the Act. The remedy available to Financial Corporations against sureties, under Section 31 of SFC Act is also speedy and efficacious remedy. Therefore, non-application of Section 29 to the properties of surety will in no way prejudice the rights of the Financial Corporation against sureties.
Cases Referred: AIR 1984 SC 505; 1991(2) SCC 637; (1990) 2 SCC 378; (2002) 3 SCC 533; AIR 1992 Ori 157; AIR 2002 P&H 74; AIR 1977 KAR 204; AIR 1969 SC 297; 1992(3) SCC 159;(1914-15) ALL E R 1061; AIR 1963 SC 1241; 2003(2) SCC 455; 1994(2) SCC 647; AIR 1986 Kar. 222; AIR 1975 Allahabad 416; 1991(2) SCC 637.
( 1 ) THESE cases involving a cpmmon question of law are heard together by. consent. The facts of each of these cases are given below briefly. Re : W. P. Nos. 37209 and 37907/2000 : (11) An industrial concern by name A. P. Rocks Pvt. Ltd. borrowed certain amount from the Karnataka State Financial Corporation, the first respondent (KSFC for short ). The petitioners in these two petitions viz. , n. Narasimhaiah and K. Rajan offered their respective properties bearing No. 59 (old no. 55), Annammadevi Temple Extension, division No. 22, Subedar Chatram Road, bangalore and House No. 49, Houselist khata No. looa, Mannarayana Palya, chalanayakanahalli village, Kasaba Hobli, bangalore North Taluk, as collateral security in favour of KSFC, as Guarantors for re-payment of the amounts advanced to A. P. Rocks Private Ltd. As the borrower committed default, KSFC passed an order dated 20-11-2000 under Sec. 29 of the State Financial Corporations Act, 1951 (for short SFC act) directing that possession of the said two properties belonging to the petitioners be taken over. Feeling aggrieved, the petitioners have filed these petitions praying that the said order dated 20-11-2000 be quashed and seeking a direction to KSFC (first respondent in WP 37209/2000 and sole respondent in WP 37907/2000) not to take possession of the said properties. Re : W. P. No. 24452/2001 : (12) Ms. Rockwave Exports (P) Ltd. the second respondent in the petition, secured financial assistance from KSFC (first respondent) in the form of subscription to non- convertible privately placed debentures issued by second respondent. The petitioner - veeraswamy was one of the sureties for repayment and he mortgaged his property bearing No. 288/38, Khata No. 312/273, malavagappa village, Nidige Hobli, Shimoga district in favour of KSFC, as collateral security. When the borrower committed default by failing to redeem the debentures issued, KSFC issued a notice dated 15/16-5-2001 to the borrower and all sureties stating that it has decided to take action properly under Sec. 29 of the SFC Act. Petitioner has filed this petition for quashing the said communication dated 15/16-5-2001 and seeking a declaration that KSFC has no power to proceed against a guarantor or the property given as security for the dues of principal debtor under Sec. 29 of SFC Act. Re : WP No. 13354/2002 and WP No. 16614/2002: (13) M/s. Eagle Constructions (second respondent in WP 16614/2002) is a borrow from KSFC (first respondent in both the petitions ). B. S. Ramanna (Petitioner in WP 16614/2002 and second respondent in, WP 13354/2002) mortgaged his property bearing No. 86 (Katha No. 747 ). K. P. Puram, bangalore South Taluk mortgaged the said property in favour of KSFC as security for the repayment of the amount advance to eagle Constructions. By order dated 25-2-2002 passed under Sec. 29 of SFC Act, KSFC has directed that the possession of the said property be taken over for recovery of the amount due by Eagle Constructions, as the borrower had committed default in paying the amount due by it. Thereafter KSFC informed B. S. Ramanna by letter dated 26/28-2-2002 about the seizure order dated 25-2-2002 and stated that KSFC will take further action for recovery. The petitioner in WP 13354/2002 has sought quashing of the seizure order 25-2-2002 passed by KSFC under Sec. 29 of the SFC Act authorizing its officers to take possession of the said property. (14) Petitioner and respondents 3 to 5 in wp 13354/2002 are the sons of B. S. Ramanna. The petitioner in WP 13354/2002 has alleged that the said property is the ancestral property of B. S. Ramanna and his four sons (petitioner and respondents 3 to 5) and B. S. Ramanna has only an one- fifth share therein; that B. S. Ramanna created an equitable mortgage over the said property in favour of KSFC without their consent and such mortgage cannot bind the right, title, share and interest of the petitioner and respondents 3 to 5, and that a partition suit filed