9911796707
TMI Blog1972 (11) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... It is alleged that after the payment of the first instalment, the petitioner paid some amount against the second instalment. But thereafter he failed to pay anything. Consequently the respondent-Corporation gave a notice on 17th September 1968 calling upon the petitioner to pay the whole amount with interest. As the petitioner did not pay the whole amount even after this notice, an application under Section 31 of the Act was filed before the District Judge on 6th December 1968. In his reply to this application, the petitioner pleaded that he was regular in payment upto 30th June 1966. but later on account of acute shortage of water in Indore there was cut in electric supply and so the petitioner could not run his factory, and it was because of these circumstances that it became impossible for the petitioner to pay the instalments and interest as stipulated. It was also pleaded by the petitioner that as the factory had been closed for the last three years and it was not possible for him to pay the whole amount, he should be granted the facility of instalments. On the pleadings of the parties, the learned District Judge framed various issues, and by his order dated the 6th Septe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding to the learned counsel, the claim would only be pertaining to the demand made by respondent No. 2 and as in the present case the amount claimed was not disputed, the learned District Judge was right in refusing to investigate into the reasons for non-payment. He also contended that although the Code of Civil Procedure has been made applicable still it would only be applicable to the extent of procedure pertaining to enquiries before the District Court. Section 30 of the Act no doubt provides that the Financial Corporation may by notice in writing demand the payment of full amount advanced to any industrial concern in the event of the happening of certain events, and the clauses of this section provide for all those circumstances which will entitle the Corporation to demand the whole amount. Section 30. therefore confers power on the Corporation to recover the whole amount in addition to the term of the contract itself. Section 31 of the Act provides the procedure for the recovery of the amount. It was contended, on reference to the statement of objects and reasons which was attached to the Bill of this Act when it was presented for enactment, that the scheme of Section 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the application, where-as Clause (c) provides for certain interim orders in the nature of attachment or injunction. Section 32 of the Act prescribes the procedure after such an application has been filed before the District Judge. Sub-sections (1) and (2) of Section 32 pertain to Passing of interlocutory orders. Sub-section (3) provides that if the District Judge so thinks fit he may even examine the officer who makes the application, before the issue of an interlocutory order, Sub-section (4) of Section 32 and the rest of its sub-sections provide for the procedure for final determination Subsections (4), (5) and (6) of Section 32 are as under : 32. .................. (4) At the same time as he passes an order under Sub-section (1). the District Judge shall issue to the industrial concern a notice accompanied by copies of the order, the application and the evidence, if any. recorded by him calling upon it to show cause on a date to be specified in the notice why the ad interim order of attachment should not be made absolute or the injunction confirmed. (5) If no cause is shown on or before the date specified in the notice under Sub-sections (2) and (4). the Dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction shall be carried into effect as far as practicable in the manner provided in the Code of Civil Procedure, 1908, for the attachment or sale of property in execution of a decree as if the Financial Corporation were the decree-holder. This language was considered by the Supreme Court in AIR 1972 SC 801 where it was held as under- The question which really arises is whether by using the words in the manner provided in the Code of Civil Procedure in Section 32(8) the Legislature intended to include the provisions in the Code dealing with appeals. There is no doubt that under the Code of Civil Procedure an order setting aside or refusing to set aside a sale in execution of a decree is appealable under O. XLIII, Rule 1 (i). It is difficult to understand why the scope of the language should be cut down by not including appeals provided under the Code of Civil Procedure within the ambit of the words 'in the manner provided in the Code of Civil Procedure'. 'Manner' means method of procedure and to provide for an appeal is to provide for a mode of procedure. The State Financial Corporation lends huge amounts and we cannot for a moment imagine that it was the int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olve the injunction; or (e) transfer the management of the industrial concern to the Financial Corporation or reject the claim made in this behalf; Provided that when making an order under Clause (c), the District Judge may make such further orders as he thinks necessary to protect the interests of the Financial Corporation and may apportion the costs of the proceedings in such manner as thinks fit: Provided further that unless the Financial Corporation intimates to the District Judge that it will not appeal against any order releasing any property from attachment, such order shall not be given effect to, until the expiry of the period fixed under Sub-section (9) within which an appeal may be preferred or, if an appeal is preferred, unless the High Court otherwise directs until the appeal is disposed of. These reliefs which a District Judge can grant while deciding an application under Section 31 of the Act clearly go to show that the District Judge can also release a property from attachment, and while so doing he can also pass orders for protecting the interests of the Financial Corporation. This also shows that the District Judge can even pass orders which d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t view of the matter, the principles laid down by the Supreme Court will fully apply to the present case also, and no distinction can be drawn only on that ground. It appears that what the Supreme Court felt was that if at the time of motion hearing the petition had not been entertained, the petitioner could have sought the alternative remedy, but that not having been done, after lapse of long time it would not be fit to refuse to grant relief as now it would not be possible for the petitioner to avail of the alternative remedy also. Apart from that, the question involved in the present case is about the jurisdiction of the District Judge, and by refusing to investigate into the objections raised by the petitioner the District Judge had refused to exercise jurisdiction in him by law. Consequently this is a ground on which a petition under Article 226 or even under Article 227 of the Constitution would be maintainable. Consequently the petition cannot also be thrown out on the objection of maintainability. The petition is, therefore, allowed, the order passed by the District Judge, Indore, is set aside, and the case is sent back to him for investigating into the objections raised ..... X X X X Extracts X X X X X X X X Extracts X X X X
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