(July 17, 2001) 2001 (TLS)126160

2001-DLT-93-834 :: 2001-AD (Del)-6-909

PRADIP GUPTA Vs. Haryana Financial Corporation

DEVINDER GUPTA

( 1 ) THE order passed on 21. 9. 2000 by learne. d Single Judge is under challenge by which learned Single Judge decided issue No. 5 holding that this Court has no jurisdiction to fry Hie suit and consequently directed the plaint to be returned for being presented in an appropriate court having jurisdiction to try the suit.

( 2 ) FACTS in brief are that on 10. 4. 1994 the plaintiff/appellant filed a suit seeking decree for declaration, permanent injunction and rendition of accounts against the defendant respondent. The prayer clause reads:- "it is, therefore, most respectfully prayed that this Hon ble court would be pleased to pass: (i) declaring that the claim of the defendant on the basis of guarantee dated 7. 3. 75 has become barred by time and hence no amount is recoverable from the plaintiff on the basis thereof: (ii) of permanent injunction restraining the defendant, its agents, servants, employees, representatives, assigns, administrators, etc. be passed restraining them from recovering any amount from the plaintiff on the basis of guarantee dated 7. 3. 75. In the alternative

(I) declaring that the bond of guarantee dated 7. 3. 75 was and is not a legal valid and subsisting document and the plaintiff is not a surety to the loans taken by M/s. Haryana Electro Steel Co. Ltd. from. Haryana Financial Corporation under mortgage deed dated 7. 3. 75.

(II) declare that interest clause 1 and 6. 1 of the mortgage deed dated 7. 3. 75 are null and void and 6% interest simple can be charged only up to the date of winding up of the company dated 16. 1. 86.

(III) of preliminary and final rendition of account against the Haryana Financial corporation:

(IV) of mandatory injunction restraining/directing Haryana Financial Corporation not to claim any amount from the Plaintiff in respect of the loans taken by M/s. Haryana electro Steel Limited and/or to issue certificate of recovery. "

( 3 ) THE aforementioned reliefs were prayed, inter alia, alleging that the plaintiff is the promoter Director of M/s. Haryana Electro Steel Limited, Sonepat and also shareholders and creditor of the said company, which is under liquidation under the orders of the Punjab add haryana High Court. In order to establish factory, the Company approached Haryana financial Corporation for financial assistance. After negotiations, financial facility to the extent of Rs. 25,00,000/- was extended. Company executed mortgage deed in favour of the corporation. The plaintiff being the director, the Corporation forced him to execute a bond of guarantee in its (Corporation) favour. The Company faced problems at initial stage and could not pay the instalments. The Corporation, therefore, filed a petition against the company under Section 31 of the State Financial Corporation Act, 1951 in the court of the additional District Judge, Sonepat. The plaintiff was not impleaded as a party to those proceedings. It is thus alleged that the Corporation chose to abandon its claim against the plaintiff though the cause of action had arisen to the defendant against the plaintiff also. Additional District Judge, Sonepat permitted the defendant to recover rupees twenty six lakhs and odd with future interest from the Company by putting the mortgaged property to sale further directing that in case the proceeds. be less, the Corporation will be at liberty to recover the balance. The company as well as the Corporation went in appeal against this order. Appeal of the Company was dismissed. Appeal of the Corporation was accepted by the Punjab and Haryana High Court.

( 4 ) THE plaintiff further alleged that in accordance with the procedure as laid down under section 32 of the State Financial Corporation Act, 1951 the mortgaged property could habes been subject to sale only in the manner provided therein. The Corporation did not pursue the matter diligentl