Judgment:
ORDER
N. N. Mithal, J.
1. U. P. Financial Corporation being aggrieved by an order passed by the Civil Judge, Ghaziabad restraining it from realising its money otherwise than by proceeding under Sec. 31 of the State Financial Corporation Act have come up to this Court.
2. Briefly stated facts are that under an agreement between the parties a sum of Rs. 6,51,000/- was advanced by way of loan to the plaintiff on 30-6-83. Subsequently in 1984 an additional loan of Rs. 1,23,000/- was also advanced to the plaintiff. It is admitted to the plaintiff that the entire amount has not been repaid as per the agreement on account of some financial stringency. A notice ofdemand to pay up the arrears within ten days was sent to the plaintiff on 28-9-89 that in the event of failure to pay the amount the Corporation will take proceeding under Sec. 29 of the Act. According to the plaint the defendant Corporation wanted to take possession over the plaintiff's industrial concern forcibly without any right; hence the suit was filed for injunction to restrain it from doing so. An application for ad interim relief on the same line was also made. From the impugned order it appears that the appellant Corporation neither raised any objection nor any one appeared to contest the application.
3. The submission accepted by the Court below is that the Corporation can only take steps to take possession after obtaining an order under Sec. 31 from the Court. In support of this stand the trial Court has relied upon a Full Bench decision of the Court in Munna Lal Gupta v. U. P. Financial Corporation, AIR 1975 All 416.
4. Parties are represented before us and they have already exchanged their counter and rejoinder affidavits also. They have agreed that the appeal itself may be heard and disposed of at the admission stage. Accordingly we proceed to dispose of the same.
5. At the very outset we may point out that on facts the above Full Bench decision is clearly distinguishable. In that case the Corporation was taking proceeding against the property of the surety under Section 29 and what the Court held there was that the Corporation can take action under Section 29 only i.e. against the borrower of the loan from it and not against the surety.
6. On a comparison of the languages of Sections 29 and 31 the Court observed thus:
'Clause (a) of Section 31 does not confine to the property of the borrower alone but it extends to all properties that are mortgaged, hypothecated or assigned to the Financial Corporation by way of surety for the loan or advance. This may include the property of a surety also. That is not the position under Sec. 29.'
7. The aforesaid case, therefore, did not lay down as a proposition that even against the borrower the Corporation had no right to proceed under Section 29.
8. Before us the submission advanced by learned counsel for the respondent was that, when a specific remedy is available to Corporation to proceed in the Court of the District Judge under Sec. 31 the Corporation cannot get the same relief by circumventing this provision and enforce its right under Section 29 as this would be arbitrary.
9. In our opinion the very premise for this argument is faulty and against the established law. A similar question had arisen in M/s. Magarilal Chhagganlal (Pvt.) Limited v. Municipal Corporation of Greater Bombay, AIR 1974 SC 2009 where also two different procedures were provided for obtaining similar relief and the question arose whether on this account the provision would be hit by Art. 14 of the Constitution of India. The Supreme Court took the view that merely because one procedure provides the forum of a civil court while the other provides the forum of an administrative tribunal it cannot be said that the latter is necessarily more drastic and onerous. To attract the inhibition of Art. 14 there must be substantial and qualitative difference between the two procedures so that one is really and substantially more drastic and prejudicial.
10. Where the legislature considers that the ordinary procedure is either insufficient or ineffective and it provides for a special speedy procedure the same cannot be said to be drastic or onerous.
11. Section 29 of the State Financial Corporation Act came up for consideration before a Division Bench of this Court in Writ Petn. No. 6451 of 1987 Vindu Pratap Singh v. U. P. State Financial Corporation and the Court held that due to different procedures, for recovery under. Sections 29 and 31 of the Act Section 29 cannot be said to be ultra vires Art. 14 of the Constitution. It was also observed that on a reading of the two provisions of the Act (Sections 29 and 31) itappears that the Corporation can resort either one of the two sections. Discretion is left with the Corporation to choose any one of the two remedies as available to it.
12. We have considered the respective submissions and we are of the opinion that merely due to existence of another procedure available to the Corporation under Sec. 31 to obtain possession over the industrial concern, the Corporation cannot be denied its right to proceed under Sec. 29. If the Corporation has a remedy under Sec. 29 against the borrower it cannot be compelled to proceed against him only under Sec. 31. The provision of Section 29 empowers the Corporation to take over the management of the industrial concern as also to transfer by way of lease, sale etc. any property pledged, mortgaged, hypothecated or assigned to it if the borrower commits default in the repayment of loan or any instalment thereof. Since it is not denied here that the plaintiff had committed default in repayment of loan as per agreement the Corporation was certainly entitled to proceed under Section 29. It is not the plaintiffs' case that in enforcing Section 29 the Corporation had not followed the procedure laid down nor is there any material to suggest that the plaintiff was likely to suffer any irreparable injury if the injunction was refused or that the balance of convenience was in its favour. The plaintiff had thus failed to establish any of the three basic ingredients without proof of which the Court cannot grant temporary injunction.
13. Learned counsel for the plaintiff-respondent then referred to a recent decision of this Court in Himalaya Textile Corporation v. U. P. State Financial Corporation, AIR 1989 All 85. In that case the High Court refused to interfere in exercise of its extraordinary jurisdiction under Art. 226 of the Constitution of India on the ground that the petitioner had an equally efficatious remedy available by way of suit in the Civil Court.
14. The decision, however, does not lay down that the civil court was bound to grant a temporary injunction in every case whether or not the three essential requirements i.e. the existence of a strong prima facie case, thebalance of convenience in favour of grant of injunction and likelihood of irreparable injury if it was refused, was not present in a given case. This could not be the purpose or intent of the Court while deciding the case. Availability of an alternative remedy only means that in a proper case that relief can be granted by the Civil Court. We are, therefore, not impressed by respondent's submission in this behalf.
15. In the result, the appeal succeeds and is allowed. The case will now go down to the Court below for decision of the temporary injunction application afresh. While doing so the Court will not be weighed down by the consideration that Section 31 also prescribes a procedure to realise the dues of the Corporation by sale of property and for taking over the management of the industrial concern. It shall confine its consideration only to the three main considerations which govern the grant or refusal of temporary injunction. In the circumstances of the case we would leave the parties to bear their own costs in this Court.
16. Appeal allowed.