Appeal No 782 of 1991
From the Judgment and Order dated 1071990 of the Bombay 484 High Court in Appeal No 423 of 1987
Ashok H Desai Vinay Tulzapurkar Raghu Kothare and Rajiv Dutta for the Appeallant
Soli J Sorabjee DR Poddar Ms Purnima Atul Sharma AVPalli ECAgrawala and VBJoshi for the Respondents
The Judgments of the Court was delivered by OJHA J Special leave granted
This appeal by special leave has been preferred against the judgment dated 10th July 1990 of the Bombay High Court in Appeal No 423 of 1987
Respondent No I is a private limited company whereas Respondents 2 to 4 are its Directors
Respondent No 1 for setting up a factory sought financial assistance from the appellant and the appellant sanctioned a loan of Rupees thirty lakhs
In order to secure the loan Respondent No 1 executed a deed of mortgage of certain properties on 29th June 1979 and Respondents 2 to 4 on the same date by executing a deed of guarantee stood surety for repayment of the said loan
It was a case of personal guarantee only as no property was given in security
For the sake of brevity the appellant Respondent No I and Respondents 2 to 4 shall hereinafter be referred to as the Corporation the Company and the sureties respectively
The amount of loan was to be advanced in phases and after the Corporation had advanced a part of the total sanctioned loan the Company did not want to avail of the balance of the amount as it seems to have lost interest in setting up the factory for reasons with which we are not concerned
The Corporation consequently called upon the Company to repay the amount already advanced together with interest and on its failure to do so took possession under Section 29 of the for short the Act over the industrial concern a term defined under Section 2c of the Act and took steps to realise its outstanding dues by transfer of property in the manner provided therein
However notwithstanding advertisement for sale thereof having been made on several occasions the Corporation could not get an offer of more than about Rupees five lakhs
Having failed to recover the amount due to it in the manner stated above the Corporation proceeded to recover the same from the sureties whose liability was coextensive and for this purpose it filed a petition in the High Court under Sections 31 and 32 of the Act arraying 485 the Company as Respondent No I and the sureties as Resondents 2 to 4 with the prayer that the respondents be jointly and severally ordered and decreed to pay the petitioners the sum of Rs 158739120 as per particulars hereto annexed and marked exhibit H with further interest at the rates of 14 12 per annum till payment and may further be ordered to pay to the petitioners costs of the petition
Thus according to the relief claimed in the petition the liability of the respondents with regard to the amount payable to the Corporation on the date of making of the petition was for a sum which was more than Rupees fifty thousand which as will be presently shown represents maximum amount over which the Bombay City Civil Court has pecuniary jurisdiction
The respondents contested the petition and raised three pleas in defence 1 A petition under Sections 31 and 32 of the Act could be filed only in the Bombay City Civil Court and the High Court had no jurisdiction to entertain it 2 the relief claimed in the petition could not be granted under Sections 31 and 32 of the Act inasmuch as these sections did not contemplate passing of a money decree not only against the principal debtor but also against the sureties and 3 the provisions in the Act relating to enforcement of the liability of a surety were ultra vires Article 14 of the Constitution
The learned Single Judge of the High Court before whom the petition came up for hearing did not in view of his finding on the first two pleas entertain any argument on the last plea nor has the said plea been raised before us and as such the same does not need to be gone into
As regards the second plea it was conceded before the learned Single Judge on behalf of the Corporation by its learned counsel that no such money decree could be passed against the Company as was claimed in the petition
It was however asserted that such a decree could be passed as against the sureties
In this view of the matter the petition was treated and decided as being confined against the sureties only
In regard to the plea of jurisdiction the learned Single Judge took the view that since an appeal was pending before a Division Bench of the High Court against the judgment of a Single Judge in Misc Petition No 357 of 1985 Maharashtra State Financial Corporation vs Hindtex Engineers Pvt Ltd decided on 3rd December 1986 since reported in  in which it had been held that such a petition was maintainable in the High Court he would proceed to decide the petition on merits on the assumption that he had jurisdiction to entertain it
On merits he took the view that no money decree could be passed in a petition under Sections 31 and 32 of the Act 486 even against the sureties and since in the instant case sureties had admittedly not given any security except their personal guarantee the said surety could be enforced only in the ordinary course and not under the special machinery provided under the Act
The petition was accordingly dismissed
Aggrieved by the judgment of the learned Single Judge the Corporation preferred an appeal before a Division Bench which has been dismissed by the judgment under appeal
The Division Bench not only upheld the finding of the Single Judge on merits but also over ruled the decision reported in and held that the High Court had no jurisdiction to entertain a petition under Sections 31 and 32 of the Act
Shri Ashok Desai Senior Advocate appearing for the Appellant Corporation has assailed the findings of the High Court in the judgment under appeal both on merits and on the plea about jurisdiction
Shri Soli J Sorabjee Senior Advocate appearing for the respondents has in reply asserted that the findings of the High Court on both the pleas were unassailable
An application for intervention being IA No 3 of 1990 has been made on behalf of Nav Bharat Udyog a partnernship firm having its office at Mehta Building 2nd Floor 47 Nagindas Marg Bombay confined to the plea with regard to jurisdiction and it has been urged by learned counsel for the intervenor also in line with the submission made by learned counsel for the respondents that it is only the Bombay City Civil Court and not the High Court which has jurisdiction to entertain a petition under sections 31 and 32 of the Act
For the sake of facility in considering the respective submissions made by learned counsel for the parties we find it useful to refer to the statutory provisions relevant in this behalf
Section 2 of the Bombay City Civil Court Act 1948 contains definitions and inter alia provides 2
In this Act unless there is anything repugnant in the subject or context 1 City Court means the Court established under Section 3 2 High Court means the High Court of Judicature at Bombay 487 Section 3 in its turn provides 3
The State Government may by notification in the Official Gazette establish for the Greater Bombay a court to be called the Bombay city Civil Court
Notwithstanding anything contained in any law such court shall have jurisdiction to receive try and dispose of all suits and other proceedings of a civil nature not exceeding fifty thousand rupees in value and arising within the Greater Bombay except suits or proceedings which are cognizable a by the High Court as a Court of Admiralty or Vice Admiralty or as a Colonial Court of Admiralty or as a Court having testamentary intestate or matrimonial jurisdiction or b by the High Court for the relief of insolvent debtors or c by the High Court under any special law other than the Letters Patent or d by the Small Cause Court Provided that the State Government may from time to time after consultation with the High Court by a like notification extend the jurisdiction of the City Court to any suits or proceedings which are cognizable by the High Court as a court having testamentary or intestate jurisdiction or for the relief of insolvent debtor
 The other Section which is relevant is Section 12 which reads 12
Notwithstanding anything contained in any law the High Court shall not have jurisdiction to try suits and proceedings cognizable by the City Court Provided that the High Court may for any special reason and at any stage remove for trial by itself any suit or proceeding from the City Court
 As regards Sections 31 and 32 of the  since the submissions made by learned counsel for the 488 parties referred to most of the provisions contained therein these two Sections may be quoted in their entirety
They read 31
1 Where an industrial concern in breach of any agreement makes any default in repayment of any loan or advance or any instalment thereof or in meeting its obligations in relation to any guarantee given by the Corporation or otherwise fails to comply with the terms of its agreement with the Financial Corporation or where the Financial Corporation requires an industrial concern to make immediate repayment of any loan or advance under section 30 and the industrial concern fails to make such repayment then without prejudice to the provisions of section 29 of this Act and of section 69 of the any officer of the Financial Corporation generally or specifically authorised by the Board in this behalf may apply 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 following reliefs namely a for an order for the sale of the property pledged mortgaged hypothecated or assigned to the Financial Corporation as security for the loan or advance or aa for enforcing the liability of any surety or b for transferring the management of the industrial concern to the Financial Corporation or c for an ad interim injunction restraining the industrial concern from transferring or removing its machinery or plant or equipment from the premises of the industrial concern without the permission of the Board where such removal is apprehended
2 An application under sub section 1 shall state the nature and extent of the liability of the industrial concern to the Financial Corporation the ground on which it is made and such other particulars as may be prescribed
1 When the application is for the reliefs mentioned in clauses a and c of sub section 1 of section 31 the 489 district judge shall pass an ad interim order attaching the security or so much of the property of the industrial concern as would on being sold realise in his estimate an amount equivalent in value to the outstanding liability of the industrial concern to the Financial Corporation together with the costs of the proceedings taken under section 31 with or without an ad interim injunction restraining the industrial concern from transferring or removing its machinery plant or equipment
IA When the application is for the relief mentioned in clause aa of sub section 1 of section 31 the district judge shall issue a notice calling upon the surety to show cause on a date to be specified in the notice why his liability should not be enforced
2 When the application is for the relief mentioned in clause b of sub section 1 of section 31 the district judge shall grant an ad interim injunction restraining the industrial concern from transferring or removing its machinery plant or equipment and issue a notice calling upon the industrial concern to show cause on a date to be specified in the notice why the management of the industrial concern should not be transferred to the Financial Corporation
3 Before passing any order under sub section I or sub section 2 or issuing a notice under sub section IA the district judge may if he thinks fit examine the officer making the application
4 At the same time as he passes an order under sub section 1 the district judge shall issue to the industrial concern or to the owner of the security attached a notice accompanied by copies of the order the application and the evidence if any recorded by him calling upon it or him 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
4A If no cause is shown on or before the date specified in the notice under sub section IA the district judge shall forthwith order the enforcement of the liability of the surety
490 5 If no cause is shown on or before the date specified in the notice under sub sections 2 and 4 the district judge shall forthwith make the ad interim order absolute and direct the sale of the attached property or transfer the management of the industrial concern to the Financial Corporation or confirm the injunction
6 If cause is shown the district judge shall proceed to investigate the claim of the Financial Corporation in accordance with the provisions contained in the Code of Civil Procedure 1908 in so far as such provisions may be applied thereto
7 After making an investigation under sub section 6 the district judge may a confirm the order of attachment and direct the sale of the attached property b vary the order of attachment so as to release a portion of the property from attachment and direct the sale of the remainder of the attached property c release the property from attachment d confirm or dissolve the injunction da direct the enforcement of the liability of the surety or reject the claim made in this behalf 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 or making an order rejecting the claim to enforce the liability of the surety under clause da or making an order rejecting the claim to transfer the management of the industrial concern to the Financial Corporation under clause e 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 he thinks fit 491 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 or rejecting the claim to enforce the liability of the surety or rejecting the claim to transfer the industrial concern to the Financial Corporation 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
8 An order of attachment or sale of property under this section 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
8A An order under this section transferring the management of an industrial concern to the Financial Corporation shall be carried into effect as far as may be practicable in the manner provided in the Code of Civil Procedure 1908 for the possession of immovable property or the delivery of immovable property in execution of a decree as if the Financial Corporation were the decree holder
9 Any party aggrieved by an order under sub section 4A sub section 5 or sub section 7 may within thirty days from the date of the order appeal to the High Court and upon such appeal the High Court may after hearing the parties pass such orders thereon as it thinks proper
10 Where proceedings for liquidation in respect of an industrial concern have commenced before an application is made under sub section 1 of section 31 nothing in this section shall be construed as giving to the Financial Corporation any preference over the other creditors of the industrial concern not conferred on it by any other law
11 The functions of a district judge under this section shall be exercisable 492 a in a presidency town where there is a City Civil Court having jurisdiction by a judge of that court and in the absence of such court by the High Court and b elsewhere also by an additional district judge or by any judge of the principal court of civil jurisdiction
12 For the removal of doubts it is hereby declared that any court competent to grant an ad interim injunction under this section shall also have the power to appoint a Receiver and to exercise all the court powers incidental thereto
At this place it may be pointed out that with regard to the enforcement of the liability of a surety it was held by a Full Bench of the Allahabad High Court in Munnalal Gupta vs Uttar Pradesh Financial Corporation and Another AIR 1975 Allahabad 416 that from the scheme of the Act it is clear that the speedy remedy contained in Section 31 is available not against the surety but against the borrower only
In arriving at this conclusion reference was made inter alia to the reliefs a b and c contained in sub section 1 of Section 31 and to sub section 4 of Section 32 of the Act as it then stood
It was pointed out that this sub section 4 contemplated a notice to the borrower industrial concern after an interim order had been passed to show cause why the ad interim injunction should not be made absolute but did not contemplate a notice to the surety and that it would be unthinkable that the Legislature intended that the property of the surety may be attached and put to sale without even a notice to him
It appears that in order to meet the difficulty in enforcing the liability of a surety as pointed out in the case of Munnalal Gupta supra Parliament found it necessary to make specific provisions in this behalf and passed the State Financial Corporations Amendment Act 1985 hereinafter referred to as Act 43 of 1985
Among other amendments made by Act 43 of 1985 were the following i In sub section 1 of Section 31 clause aa was inserted
ii In Section 32 a new sub section lA and in sub section 3 thereof the words or issuing a notice under sub section lA were inserted
493 iii Sub section 4 of Section 32 was substituted with an inclusion of sub section 4A
iv The word or occurring at the end of clause d of sub section 7 was omitted and a new clause da was inserted
v In the first proviso after sub section 7 the words or making an order rejecting the claim to enforce the liability of the surety under clause da or making an order rejecting the claim to transfer the management of the industrial concern to the Financial Corporation under clause e and in the second provis1on the words or rejecting the claim to enforce the liability of the surety or rejecting the claim to transfer the industrial concern to the Financial Corporation were inserted and in sub section 9 the words under sub section 4A sub section 5 were substituted for under sub section 5 By the same Act 43 of 1985 a new Section 32G was inserted which reads 32G
Where any amount is due to the Financial Corporation in respect of any accommodation granted by it to any industrial concern the Financial Corporation or any person authorised by it in writing in this behalf may without prejudice to any other mode of recovery make an application to the State Government for the recovery of the amount due to it and if the State Government or such authority as that Government may specify in this behalf is satisfied after following such procedure as may be prescribed that any amount is so due it may issue a certificate for that amount to the Collector and the Collector shall proceed to recover that amount in the same manner as an arrear of land revenue
 Having extracted the relevant statutory provisions we now take up the question of jurisdiction
Sub section 1 of Section 31 of the Act contemplates making of the petition thereunder to the district judge within the limits of whose jurisdiction the industrial concern carries on the whole or a substantial part of its business
A petition so made is to be decided in the manner provided by Section 32 of the Act subsection 11 whereof inter alia provides that the functions of a district judge under the said Section shall be exercisable in a Presidency town where there is a City Civil Court having jurisdiction by a judge 494 of the court and in the absence of such court by the High Court
It has been urged by learned counsel for the appellant that in a case to which the provisions contained in sub section 1 of Section 32 of the Act and of the Bombay City Civil Court apply if the extent of the liability sought to be enforced against a surety is upto Rupees fifty thousand a petition under Section 31 read with Section 32 of the Act would lie before the Bombay City Civil Court and if the liability is more than the said amount it would lie before the High Court
This according to him is apparent from the use of the words having jurisdiction in sub section 11 of Section 32 of the Act and the extent of the pecuniary jurisdiction of the Bombay City Civil Court as contained in Section 3 of the Bombay City Civil Court Act
According to him since in the instant case the liability sought to be enforced against the sureties was for a sum of more than Rupees fifty thousand the petition made by the appellant was maintainable in the High Court alone and not in the Bombay City Civil Court
On the other hand it has been urged on behalf of the respondents and the intervenor by their learned counsel that word jurisdiction used in sub section 1 of Section 31 and sub section 11 of Section 32 of the Act connotes territorial jurisdiction alone and that the concept of pecuniary jurisdiction is beyond the scope of Sections 31 and 32 in view of the decision of this Court in Gujarat State Financial Corporation vs Natson Manufacturing Co Pvt Ltd and Ors relied on in Ms Everest Industrial Corporation and Ors
vs Gujarat State Financial Corporation   and Maganlal vs Ms Jaiswal Industries Neemach and Ors   which lays down that an application under Section 311 of the Act is neither a plaint as contemplated by Article I of Schedule I nor an application in the nature of a plaint as contemplated by Article 7 of the Court Fees Act 1870 that the special procedure contained in Section 3 11 was not even something akin to a suit of a mortgagee to recover mortgage money by sale of mortgaged property that even if the Corporation applicant so chooses it cannot pray for a preliminary decree for accounts or final decree for payment of money nor can it seek any personal liability that the Corporation cannot pray for a decree of its outstanding dues that the reliefs contemplated by Section 311 on being granted do not result in a money decree or decree for recovery of outstanding loans or advance that a substantive relief in an application under Section 311 is something akin to an application for attachment of property in execution of a decree at a stage posterior to the passing of the decree and that such relief cannot be valued in terms of the monetary gain or prevention of monetary loss
495 Having given our anxious consideration to the question we are inclined to agree with the submission made by learned counsel for the appellant
The three decisions of this Court referred to above and relied on by learned counsel for the respondents were not cases relating to the enforcement of a liability of a surety made possible by the amendments by Act 43 of 1985
In our opinion what has been laid down therein does not in any way militate against ascertaining in monetary terms value or the extent of the liability of a surety which is sought to be enforced and there is intrinsic evidence in Sections 31 and 32 themselves to support this view
Sub section 2 of Section 31 makes it obligatory to state the extent of the liability 1 of Section 32 refers to an amount equivalent in value to the outstanding liability
Sub section lA of Section 32 contemplates notice to the surety to show cause why his liability should not be enforced
Sub section 6 of Section 32 contemplates investigation and determination of the claim of the Financial Corporation which is to be recovered
If the application under Section 3 11 is made before the district judge there is no difficulty because he has unlimited pecuniary jurisdiction
The difficulty arises as in the instant case when such application is to be made either before the city Civil Court or the High Court as contemplated by sub section 11 of Section 32
In our opinion the extent of the liability stated in the application as contemplated by sub section 2 of Section 31 of the Act would represent the value of the claim of the Corporation and if such value is upto Rupees fifty thousand the application would lie in the City Civil Court and if it is more than that amount it would lie in the High Court
This interpretation would give meaning and relevance to the words having jurisdiction used in sub section 11 of Section 32
A different interpretation would render superfluous or otiose not only the words having jurisdiction but also the wordsand in the absence of such court by the High Court occurring in the said sub section 11 inasmuch as in a Presidency town in terms of territorial jurisdiction the jurisdiction of the City Civil Court and of the High Court is co terminus
That it is so is clear from Section 3 of the Bombay city Civil Court Act and the definition of the term Presidency town contained in Section 344 of the according to which Presidency town shall mean the local limits for the time being of the ordinary original civil jurisdiction of the High Court of Judicature at Calcutta Madras or Bombay as the case may be
It is a settled rule of interpretation of statutes that if the language and words used are plain and unambiguous full effect must be given to them as they stand and in the garb of finding out the intention of the 496 Legislature no words should be added thereto or subtracted there from
Likewise it is again a settled rule of interpretation that statutory provisions should be construed in a manner which subserves the purpose of the enactment and does not defeat it and that no part thereof is rendered surplus or otiose
The aforesaid interpretation of sub section II of Section 32 of the Act is not only in conformity with the rule of interpretation referred to above it also does not militate in any way with the concept of an application under Section 311 of the Act not being a plaint in a suit for recovery of money
Reliance in this behalf has been placed by learned counsel for the intervenor on a decision of the Delhi High Court in Parkash Playing Cards Manufacturing Company vs Delhi Financial Corporation In our opinion however the said decision is of little assistance in resolving the plea of jurisdiction raised in the instant case namely whether in a Presidency town an application under Section 311 of the Act is to be made before a City Civil Court or High Court
In the case of Parkash Cards Manufacturing Company supra the provision which came up for consideration in the forefront was Section 5 of the and the question of jurisdiction was largely considered on that basis
Sub section 11 of Section 32 with pointed reference to the jurisdiction exercisable by a City Civil Court in a Presidency town and the High Court did not fall for consideration in that case
The case which throws some light on the point is a decision of the Calcutta Court Court in West Bengal Financial Corporation vs Gluco Series Private Limited where it was held Section 32 sub section 1 1 does not say that the City Civil Court will have exclusive jurisdiction but states in the Presidency Town where there is City Civil Court having jurisdiction by a Judge of that Court and in the absence of such Court by the High Court
 The words in the absence of such Court mean in the absence of such Court having jurisdiction in the matter
The City Civil Court has no jurisdiction to entertain and try suits and proceedings of Civil nature exceeding Rs50000 in value
Here the value of the claims in the proceedings exceeds much more than Rs50000 and therefore under Section 32 sub section 11 this proceeding has been duly instituted in the High Court
497 In the instant case the extent of the liability of the surety being more than Rupees fifty thousand the application could only have been filed and was rightly filed in the High Court and the finding in the judgment under appeal to the contrary for holding that the High Court had no jurisdiction to entertain the application cannot be sustained
Now we come to the second plea raised on behalf of the respondents namely that the relief claimed in the petition could not be granted under Sections 31 and 32 of the Act inasmuch as these sections did not contemplate passing of a money decree not only against the principal debtor but also against the sureties
In so far as the special machinery provided under Sections 31 and 32 of the Act being applied to a surety who has given some property in security it has been pointed out by learned counsel for the appellant that even before the amendment introduced in these sections by Act 43 of 1985 a Division Bench of the Kerala High Court had in Thressiamma Varghese vs K section F Corporation AIR 1986 Kerala 222 taken the view that the provisions contained in these sections would be applicable
According to teamed counsel in any view of the matter after the amendment of these sections by Act 43 of 1985 introducing specific provisions for enforcement of the liability of a surety the matter is now beyond doubt that the procedure contained in these sections shall be applicable for the enforcement of the liability of such surety who has given some property in security
According to him even in the judgment under appeal the High Court has accepted this proposition and has expressed its reservation with regard to enforcement of the liability of a surety who has not given any property in security and has given only a personal guarantee
Reference in this connection has been made to the following observations in the judgment under appeal Even if the Corporation s now entitled to obtain relief also against any property which might have been given a security by the surety the further question would remain whether the Corporation is entitled under Section 31laa to obtain any relief personally against such a surety
 Indeed the submission even before us which was made by learned counsel for the appellant has been that the only effect of the 1985 amendment is that it enables proceedings to be taken for the realisation of the security given by the surety in respect of his own 498 liability whereas such proceedings could not be taken before the amendment
He however asserted that the Act even after the amendment does not enable a monetary decree to be passed against the surety any more than a decree can be passed against the principal debtor
According to him in this view of the matter in the instant case the liability of the sureties could not be enforced under Sections 31 and 32 of the Act in as much as they had given only personal guarantee and had not given any property in security
In the background of the rules of interpretation of statutes adverted to earlier and the specific provisions with regard to enforcement of the liability of a surety introduced in Sections 31 and 32 of the Act by Act 43 of 1985 we find it difficult to agree with the submission made by learned counsel for the respondents
It is true as has been indicated above that this Court has in the case of Gujarat State Financial Corporation supra taken the view that Sections 31 and 32 of the Act do not contemplate the passing of a money decree and the principle laid down in that case has been relied on in two later decisions referred to above
The said principle would in our opinion not come in the way of enforcing the liability under Sections 31 and 32 of the Act even against the surety who has given only a personal guarantee
As indicated earlier those were not cases dealing with the question of enforcement of the liability of such a surety and naturally therefore the provisions in this behalf specifically introduced in Sections 31 and 32 of the Act by Act 43 of 1985 were not considered in those cases
However in this connection what is of significance is that clause aa inserted in sub section 1 of Section 31 of the Act by Act 43 of 1985 uses the words any surety
On its plain grammatical meaning there can be no doubt that the term any surety will include not only a surety who has given some security but also one who has given only a personal guarantee
If the submission made by learned counsel for the respondents is accepted the words who has given property by way of security will have to be added after the words any surety
Such a course not only militates against the normal rule of interpretation but also tends to defeat the very purpose of the amendment introduced by Act 43 of 1985 enabling the Financial Corporation to make an application under Section 311 of the Act for enforcing the liability of any surety inasmuch as it would have the effect of restricting or qualifying the amplitude of the term any surety which the Legislature has in its wisdom thought it fit to use in its widest sense
The procedure in our opinion for enforcing the liability of a surety who has given only a personal guarantee would after the amendment introduced by Act 43 of 1985 be that an application under Section 311 shall lie for enforc 499 ing the liability of such surety as contemplated by clause aa of the said section
On such an application being made notice shall be issued to the surety as contemplated by sub section 1A of Section 32
This may in view of sub section 3 be done after examining the officer making the application
If no cause is shown in pursuance of the notice served on him by the surety sub section 4A of Section 32 contemplates passing of an order forthwith for the enforcement of the liability of surety
If on the other hand cause is shown the claim of the Financial Corporation shall be determined as contemplated by sub section 6 of Section 32 and thereafter a direction as contemplated by clause da of sub section 7 shall be issued for the enforcement of the liability of the surety or rejecting the claim made in this behalf
In the case of Maganlal supra which related to the relief contemplated by clause a of Section 311 of the Act it was pointed out that the purpose of enacting Sections 31 and 32 of the Act was apparently to provide for a speedy remedy for recovery of the dues of the Financial Corporation and that these sections had the effect of cutting across and dispensing with the provisions of the Code of Civil Procedure 1908 hereinafter referred to as the Code from the stage of filing a suit to the stage of obtaining a decree in execution whereof such properties as are referred to in clause a of sub section 1 of Section 31 could be sold
In our opinion on the same principle even in a case where the relief claimed in the application under Section 311 of the Act is for enforcing the liability of a surety who has given only a personal guarantee sub section 4A of Section 32 where no cause is shown and clause da of sub section 7 where cause is shown contemplate cutting across and dispensing with the provisions of the Code from the stage of filing a suit to the stage of obtaining a decree against the surety the passing of an order which can straightaway be executed as if it were a decree against the surety which may be passed in the event of a suit being filed
As seen above sub section 2 of Section 31 enjoins upon the Financial Corporation to state the extent of the liability of the industrial concern in the application to be made under sub section 1 thereof
Since the liability of the surety is co extensive the same shall in the absence of anything contrary in the surety bond be the liability of the surety also
In a case where there is any provision confining the liability of the surety the extent of the liability to be shown in the application shall be such as is in conformity with the surety bond
When no cause is shown by the surety on being served with the show cause notice the order which will be passed under sub section 4A of Section 32 would be for the enforcement against the surety of that liability which is stated in the application
Where however cause has been shown by the surety the extent of his liability shall be determined 500 as contemplated in sub section 6 of Section 32 and it is the liability so determined which shall be enforced under clause da of sub section 7 of Section 32
It does not require any elucidation that the extent of the liability referred to above will necessarily have to be in the very nature of things in terms of monetary value even though it may not be possible to call it a decree stricto sensu defined in Section 22 of the Code for recovery of money
Here Section 46B of the Act may be usefully extracted 46B
The provision of this Act and of any rule or orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in the memorandum or articles of association of industrial concern or in any other instrument having effect by virtue of any law other than this Act but save as aforesaid the provisions of this Act shall be in addition to and not in derogation of any other law for the time being applicable to an industrial concern
On its plain language in the absence of anything inconsistent in the Act the provisions of the Code shall obviously be applicable for the enforcement of the liability of the surety directed to be enforced as aforesaid in the same manner as a decree is enforced in a suit instituted in this behalf
It is true as has been emphasised by learned counsel for the respondents that there is no provision corresponding to sub section 8 of Section 32 for the enforcement of the liability of a surety who has given only personal guarantee but in our opinion keeping in view the amendments introduced by Act 43 of 1985 it is not very significant
To us it appears that in view of Section 46B of the Act and for the reasons to be stated shortly even if Section 46B was not there in the absence of any provision to the contrary in the Act that order also which was passed in a case where relief contemplated by clause a of Section 311 of the Act was claimed could have been enforced in the manner provided in the Code
The purpose of yet inserting sub section 8 in Section 32 seems to be that it was not intended to apply the provisions of execution of a decree for attachment or sale of property as contained in the Code in its entirety and to achieve this purpose the words as far as practicable were used in that sub section
To us it appears that in the absence of any provision such as sub section 8 of Section 32 applying the manner provided in the Code for the execution of a decree against a surety only as far as practicable the entire provision contained in this behalf in the Code 501 shall be applicable
this would be so in view of the use of the expression any other law for the time being applicable to an industrial concern
That the Code is applicable to an industrial concern also is not in dispute and cannot be doubted
We may now state our reasons for holding that even if Section 46B of the Act was not there the provisions of the Code for the execution of a decree against a surety who had given only personal guarantee would in the absence of any provision to the contrary in the Act be applicable
In view of the decision of this Court in The Central Taikies Ltd Kanpur vs Dwarka Prasad   where it was held that a persona designata is a person selected as an individual in his private capacity and not in his capacity as filling a particular character or office since the term used in Section 311 of the Act is district judge it cannot be doubted that the district judge is not a persona designata but a court of ordinary civil jurisdiction while exercising jurisdiction under Sections 31 and 32 of the Act
In National Sewing Thread Co Ltd vs James Chadwick  Bros Ltd  while repelling the objection that an appeal under the Letters Patent against the judgment of a Single Judge passed in an appeal against the decision of the Registrar under Section 761 of the was not maintainable it was held at pages 1033 34 of the Report Obviously after the appeal had reached the High Court it has to be determined according to the rules of practice and procedure of that Court and in accordance with the provisions of the charter under which that court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction
The rule is well settled that when a statute directs that an appeal shall lie to a Court already established then that appeal must be regulated by the practice and procedure of that Court
This rule was very succinctly stated by Viscount Haldane LC in National Telephone Co Ltd vs Postmaster General in these terms When a question is stated to referred to an established Court without more it in my opinion imports that the ordinary incidents of the procedure of that Court are to attach and also that any general right of appeal from its decision likewise attaches
 502 The same view was expressed by their Lordships of the Privy Council in RMARA Adaikappa Chettiar vs Ra
Chandrasekhara Thevar wherein it was said Where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal Again in Secretary of State for India vs Chellikani Rama Rao when dealing with the case under the Madras Forest Act their Lordships observed as follows It was contended on behalf of the appellant that all further proceedings in Courts in India or by way of appeal were incompetent these being excluded by the terms of the statute just quoted
In their Lordships  opinion this objection is not well founded
Their view is that when proceedings of this character reach the District Court that Court is appealed to as one of the ordinary Courts of the country with regard to whose procedure orders and decrees the ordinary rules of the Civil Procedure Code apply Though the facts of the cases laying down the above rule were not exactly similar to the facts of the present case the principle enunciated therein is one of general application and has an apposite application to the facts and circumstances of the present case
Section 76 of the confers a right of appeal to the High Court and says nothing more about it
That being so the High Court being seized as such of the appellate jurisdiction conferred by section 76 it has to exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a single Judge his judgment becomes subject to appeal under clause 15 of the Letters Patent there being nothing to the contrary in the 
And it is in view of this decision that we are of the opinion that the provisions of the Code would have even in the absence of Section 503 46B of the Act been attracted in the matter of enforcing the liability of a surety
In view of the foregoing discussion the finding of the High Court even on this point cannot be sustained
Since however the High Court has not made a determination of the liability of the sureties as contemplated by sub section 6 of Section 32 of the Act the matter has to be sent back to it for doing so and thereafter to pass an order as contemplated by clause da of sub section 7 of Section 32 of the Act and to proceed to enforce the liability so determined an against the sureties
In the result this appeal succeeds and is allowed with costs and the judgment of the Division Bench and also of the Single Judge of the High Court are set aside
The High Court shall now decide the application made by the appellant in accordance with law and in the light of the observations made above
SC AGRAWAL J Special leave granted
In this appeal two questions arise for consideration 1 whether a petition under sections 31 and 32 of the hereinafter referred to as the Act  can be filed only in the Bombay Civil City Court and the Bombay High Court on its original side has no jurisdiction to entertain it and 2 whether in such a petition a decreeorder can be passed directing payment of money by respondents nos
2 to 4 who stood surety for repayment of the loan advanced by the appellant Financial Corporation to respondent No 1 The Division Bench of the Bombay High Court has answered both these questions against the appellant
My learned brother Ojha J has disagreed with this view of the Bombay High Court on both the questions
He has held that as the extent of the liability of the surety is more than Rupees fifty thousand the application could only have been filed and was rightly filed in the High Court which had the jurisdiction to entertain it
He has also held that in view of the amendments introduced in the Act by the Amending Act 43 of 1985 an order for payment of money can be passed against the surety who has given only a personal guarantee
While I am fully in agreement with the decision of my learned brother on the first question with regard to the jurisdiction of the Bombay High Court to entertain the petition filed by the appellant I have not been able to persuade myself to agree with the view taken by him on the second question
Section 31 of the Act has been described in the marginal note as special provisions for enforcement of claims by the Financial Corpora 504 tion
It deals with a situation where an industrial concern in breach of any agreement makes any default in repayment of any loan or advance or any instalment thereof or in meeting its obligations in relation to any guarantee given by the Corporation or otherwise fails to comply with the terms of its agreement with the Financial Corporation or where the Financial Corporation requires an industrial concern to make immediate repayment of any loan or advance under section 30 of the Act and the industrial concern fails to make such repayment
It enables an officer of the Financial Corporation generally or specially authorised by the Board in this behalf to apply 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 following reliefs a for an order for the sale of the property pledged mortgaged hypothecated or assigned to the Financial Corporation as security for the loan or advance or aa for enforcing the liability of any surety or b for transferring the management of the industrial concern to the Financial Corporation or c for an ad interim injunction restraining the industrial concern from transferring or removing its machinery or plant or equipment from the premises of the industrial concern without the permission of the Board where such removal is apprehended
Clause aa was inserted in sub section 1 of section 31 by section 19 of Act 43 of 1985
Section 32 of the Act prescribes the procedure to be followed by the District Judge in respect of applications under section 31 of the Act
Prior to the amendments introduced in it by Act 43 of 1985 the said section read as under 32
Procedure of district judge in respect of applications under Section 31
1 When the application is for the reliefs mentioned in clauses a and c of sub section 1 of section 31 the district judge shall pass an ad interim order attaching the security or so much of the property of the industrial concern as would on being sold realise in his estimate an amount equivalent in value to the outstanding 505 liability of the industrial concern to the Financial Corporation together with the costs of the poceedings taken under section 31 with or without an ad interim injunction restraining the industrial concern from transferring or removing its machinery plant or equipment
2 When the application is for the relief mentioned in clause b of sub section 1 of section 31 the district judge shall grant an ad interim injunction restraining the industrial concern from transferring or removing its machinery plant or equipment and issue a notice calling upon the industrial concern to show cause on a date to be specified in the notice why the management of the industrial concern should not be transferred to the Financial Corporation
3 Before passing any order under sub section 1 or sub section 2 the district judge may if he thinks fit examine the officer making the application
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 district judge shall forthwith make the ad interim order absolute and direct the sale of the attached property or transfer the management of the industrial concern to the Financial Corporation or confirm the injunction
6 If cause is shown the district judge shall proceed to investigate the claim of the Financial Corporation in accordance with the provisions contained in the Code of Civil procedure 1908 in so far as such provisions may be applied thereto
7 After making an investigation under sub section 6 the district judge may 506 a confirm the order of attachment and direct the sale of the attached property b Vary the order of attachment so as to release a portion of the property from attachment and direct the sale of the remainder of the attached property c release the property from attachment d confirm or dissolve 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 he 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 untill 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
8 An order of attachment or sale of property under this section 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
8A An order under this section transferring the management of an industrial concern to the Financial Corporation shall be carried into effect as far as may be practicable in the manner provided in the Code of Civil Procedure 1908 for the possession of immovable property of the delivery of movable property in execution of a decree as if the Financial Corporation were the decree holder
507 9 Any party aggrieved by an order under sub section 5 or sub section 7 may within thirty days from the date of the order appeal to the High Court and upon such appeal the High Court may after hearing the parties pass such orders thereon as it thinks proper
10 Where proceedings for liquidation in respect of an industrial concern have commenced before an application is made under sub section 1 of section 31 nothing in this section shall be construed as giving to the Financial Corporation any preference over the other creditors of the industrial concern not conferred on it by any other law
11 The functions of a district judge under this section shall be exercisable a in a presidency town where there is a city civil court having jurisdiction by a judge of that court and in the absence of such court by the High Court and b elsewhere also by an additional district judge or by any judge of the principal court of civil jurisdiction
12 For the removal of doubts it is hereby declared that any court competent to grant an ad interim injunction under this section shall also have the power to appoint a Receiver and to exercise all the other powers incidental thereto
 By Act 43 of 1985 the following amendments have been introduced in section 32 of the Act 1 Sub section 1A which reads as under was inserted 1A When the application is for the relief mentioned in clause aa of sub section 1 of section 31 the district judge shall issue a notice calling upon the surety to show cause on a date to be specified in the notice why his liability should not be enforced 2 In sub section 3 the words or issuing a notice under sub section 1A were inserted after the words or sub section 2
508 3 Subsection 4 was substituted by sub sections 4 and 4A which read as under 4 At the same time as he passes an order under subsection 1 the district judge shall issue to the industrial concern or to the owner of the security attached a notice accompanied by copies of the order the application and the evidence if any recorded by him calling upon it or him 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
4A If no cause is shown on or before the date specified in the notice under sub section 1A the district judge shall forthwith order the enforcement of the liability of the surety
4 In sub section 7 clause da was inserted which provides as under da direct the enforcement of the liability of the surety or reject the claim made in this behalf or 5 In the first proviso to sub section 7 the words or making an order rejecting the claim to enforce the liability of the surety under clause da or making an order rejecting the claim to transfer the management of the industrial concern to the Financial Corporation under clause e were inserted after the words order under clause c
6 In the second proviso to sub section 7 the following words were inserted after words any property from attachment or rejecting the claim to enforce the liability of the surety or rejecting the claim to transfer the industrial concern to the Financial Corporation 7 In sub section 9 for the words sub section 5 the words under sub section 4A sub section 5 were substituted
In order to find an answer to the second question it is necessary to construe the words for enforcing the liability of any surety which were introduced by way of clause aa in sub section 1 of section 31 509 by the Act 43 of 1985 and also find mention in sub sections IA 4A and 7 of section 32
The learned counsel for the appellant has urged that the said words are wide in their amplitude and would cover a case where the surety has given a personal guarantee only and his liability is purely monetary
The learned counsel for the sureties viz respondents Nos 2 3 and 4 has on the other hand submitted that the said words must be construed in a more limited sense to cover only those cases where surety has given security of property to guarantee the repayment of loan and in such an event the remedy provided by sections 31 and 32 of the Act can be invoked against the surety and that the said provisions do not enable passing of an order for payment of a monetary sum against the surety who has given personal guarantee only
In order to deal with these rival contentions it would be of relevance to take note of the state of law existing on the date of the enactment of Act 43 of 1985 whereby amendments were introduced in sections 31 and 32 of the Act
The provisions contained in sections 31 and 32 of the Act came up for consideration before this Court in Gujarat State Financial Corporation vs Ms Natson Manufacturing Co P Ltd  Ors  That case related to payment of court fee on an application submitted under section 311 of the Act and the question for consideration was whether such an application should be treated on par with a suit by a mortgagee to enforce the mortgage debt by sale of the mortgaged property which is being treated as a money suit failing within the purview of Article 1 of Schedule I to the Bombay Court Fees Act 1959 or it should bear a fixed court fee under the residuary Article 1c to Schedule II of the said Act
This Court disagreeing withthe view of the Gujarat High Court held that an application under section 311 of the Act would be covered by the residuary Article 1c of Schedule II to the said Act and it should bear a fixed court fee
In this context this Court has examined the nature of the proceedings contemplated by section 311 of the Act
After referring to the provisions of the Act this Court has held that it would be inappropriate to say that an application under section 311 is something akin to a suit by a mortgagee to recover mortgage money by sale of mortgaged property and that in an application under section 311 the Corporation does not and cannot pray for a decree for its outstanding dues and that none of the three reliefs mentioned in sub section 1 of section 31 if granted results in a money decree or decree for recovery of outstanding loans or advance pages 378 379
After referring to the provisions contained in sub section 6 of section 32 which provides for investigation of the claim of the Financial Corporation in 510 accordance with the provisions contained in the code of Civil Procedure 1908 this Court has laid down The claim of the Corporation is not the monetary claim to be investigated though it may become necessary to specify the figure for the purpose of determining how much of the security should be sold
But the investigation of the claim does not involve all the contentions that can be raised in a suit
The claim of the Corporation is that there is a breach of agreement or default in making repayment of loan or advance or instalment thereof and therefore the mortgaged property should be sold
It is not a money claim
The contest can be that the jurisdictional fact which enables the Corporation to seek the relief of sale of property is not available to it or no case is made out for transfer of management of the industrial concern
 p381 This Court has further emphasised that sub section 7 of section 32 prescribes what reliefs can be given after investigation under subsection 6 is made and it clearly gives a clue to the nature of contest under sub section 6 and further that sub section 8 of section 32  only prescribes the mode and method of executing the order of attachment or sale of property as provided in the Code of Civil Procedure
According to this Court the provision contained in sub section 6 does not expand the contest in the application under section 311 as to render the application to be a suit between a mortgagee and the mortgagor for sale of mortgaged property p381
This Court has held that the substantive relief in an application under section 311 is something akin to an application for attachment of property in execution of a decree at a stage posterior to the passing of the decree p382
In Everest Industrial Corporation  Ors
vs Gujarat State Financial Corporation this Court was examining the question whether the rate of interest on the amount payable under an order passed under section 32 of the Act from the date said order is governed by section 34 of the Code of Civil Procedure 1908 or whether it is payable at the contractual rate
This Court held that section 34 CPC was not applicable to these proceedings
After referring to the earlier decision in Gujarat State Financial Corporation vs Ms Natson Manufacturing Co P Ltd  Ors case supra this Court has reiterated that the proceedings instituted under section 311 of the Act is something akin to an application for attachment of property in execution of a decree at a stage posterior 511 to the passing of the decree and therefore no question of passing any order under section 34 CPC would arise since section 34 CPC would be applicable only at the stage of the passing of the decree and not to a stage posterior to the passing of the decree
In Maganlal etc
vs Jaiswal Industries Neemach  Ors  after referring to the decisions mentioned above this Court has observed In view of these two decisions the law seems to be settled that an application under section 311 of the Act cannot be put on par to a suit for enforcement of a mortgage nor the order passed thereon under section 32 of the Act be put on par as if it was an order in a suit between a mortgagee and the mortgagor for sale of mortgaged property
On the other hand the substantive relief in an application section 311 is something akin to an application for attachment of property in execution of a decree at a stage posterior to the passing of the decree p710 The question whether the provisions of sections 31 and 32 of the Act could be invoked against the property of the surety came up for consideration before a full bench of the Allahabad High Court in Munnalal Gupta vs Uttar Pradesh Financial Corporation  Anr AIR 1975 ALL 416
In that case the surety had mortgaged his house by way of collateral security for the loan granted to the borrower industrial concern and the Financial Corporation had moved an application under section 31 of the Act for sale of the property of the surety which had been mortgaged as well as the property of the principal debtor which had been mortgaged and the question was whether an order for sale of the property of the surety could be passed on an application under section 31 1 of the Act
It was held that the relief which can be granted by a District Judge under section 32 of the Act must be confined against the borrower industrial concern and its property and that the District Judge can pass an ad interim order attaching the security or so much of the property of the industrial concern as would be sufficient in his opinion to satisfy the outstanding liability
It was laid down that the order of attachment is restricted to the property of industrial concern given to the Corporation by way of surety and he is not empowered to attach the property of a person other than an industrial concern
According to the said decision a surety who is not a partner or otherwise interested in the industrial concern cannot be proceeded against under section 31 so that his property even if mortgaged with the Corporation cannot be attached 512 by the District Judge
In this context the teamed Judges pointed out the sub section 4 of section 32 contemplates a notice to the borrower industrial concern after an interim order has been passed to show cause why the ad interim injunction should not be made absolute and the said provision does not contemplate a notice to the surety and that it would be unthinkable that the legislature intended that the property of the surety may be attached and put to sale without even a notice to him
The amendments introduced in sections 31 and 32 by Act 43 of 1985 seek to remove the lacunae in those provisions as pointed out in the aforesaid judgment of the Allahabad High Court and with that end in view clause aa has been inserted in sub section 1 of section 31 whereby a Financial Corporation can move an application under section 311 for enforcing the liability of any surety and amendments have been made in section 32 to prescribe the procedure for grant of the said relief on such application
Express provision has been made in sub section 1A of section 32 for issuing a notice to the surety requiring him to show cause why his liability should not be enforced
It is argued on behalf of the appellant that the words for enforcing the liability of any surety are wide in their amplitude to cover the monetary liability of a surety who has given personal guarantee only and has not given his property as security for repayment of the loan by the borrower industrial concern though it is not disputed that in so far as the borrower industrial concern is concerned the amendments introduced in sections 31 and 32 by Act 43 of 1985 do not alter the existing law and no order in the nature of a money decree can be passed against him in these proceedings
It is however urged that in so far as the surety is concerned the position is different and in view of the amendments introduced in sections 31 and 32 an order in the nature of a money decree can be passed against the surety who has given personal guarantee only and has not given security of his property for repayment of the loan
This argument implies that as a result of the amendments introduced in sections 31 and 32 by Act 43 of 1985 while the nature of the proceedings as against the borrower industrial concern remains unchanged and the said proceedings continue to be proceedings akin to an application for attachment of property in execution of a decree at a stage posterior to the passing of the decree the nature of these poceedings has been changed in so far as the surety is concerned and they have become proceedings in which an order in the nature of a money decree can be passed
In other words in a case where the borrower industrial concern has obtained a loan from the Financial Corporation without furnishing the security of property on the basis of 513 a personal guarantee given by the surety the Financial Corporation will have to proceed against the borrower industrial concern by instituting a regular suit for recovery of the dues whereas it can proceed against the surety under sections 31 and 32 of the Act
It means that as compared to the principal debtor the Financial Corporation vis a vis the surety has been placed on a more advantageous Position
It may however be mentioned that under the common law which finds re enactment in section 128 of the  the liability of the surety is coextensive with that of the principal debtor unless it is otherwise provided by the contract
It means that the liability must be proved against the surety in the same way as against the principal debtor
Thus under the general law the surety stands on the same footing as the principal debtor
These submissions raise the question can the legislature be attributed the intention to alter the existing law so as to bring about a change in the nature of proceedings under sections 31 and 32 of the Act and also to alter the general law relating to the enforcement of the liability of the surety I find it difficult to answer this question in the affirmative
In the matter of interpretation of statutes a principle which is well recognised in England is it is thought to be in the highest degree improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness and to give any such effect to general words merely because this would be their widest usual natural or literal meaning would be to place on them a construction other than that which Parliament must be supposed to have intended See Mexwell on The Interpretation of Statutes 12th Edition p 116
In Minet vs Leman 1955 20 Eeav
Sir John Romilly MR stated as a principle of construction which could not be disputed that the general words of the Act are not to be so construed as to alter the previous policy of the law unless no sense or meaning can be applied to those words consistently with the intention of preserving the existing policy untouched
In this context it would be of relevance to take note of the decision of this court in MKRanganathan  Anr
vs Government of Madras  Ors
  In that case this Court was required to construe the words or any sale held without leave of the Court of any of the properties of the Company which were added in section 232 1 of the Indian Companies Act 1913 by Act 22 of 1936
the said amendment was introduced with a view to get over the decision of the Allahabad High Court in Kayastha Training and Banking Corporation Ltd vs Sat Narain Singh All 433
The question was whether the words which had been added refer only to sales held through the intervention of the 514 court or whether they included the sales effected by the secured creditors outside the winding up and without the intervention of the court
This Court held that the said words referred only to sales held through the intervention of the Court and that the amendments whereby these words were introduced were not intended to bring within the sweep of the general words sales effected by the secured creditors outside the winding up
In order to arrive at this conclusion this Court placed reliance on the principle of interpretation referred to above and it was observed If the construction sought to be put upon the words or any sale held without leave of the Court of any of the properties by the Appellants were accepted it would effect a fundamental alteration in the law as it stood before the amendment was inserted in section 232 by Act XXII of 1936
Whereas before the amendment the secured creditor stood outside the winding up and could if the mortgage deed so provided realise his security without the intervention of the Court by effecting a sale either by private treaty or by public auction no such sale could be effected by him after the amendment and that was certainly a fundamental alteration in the law which could not be effected unless one found words used which pointed unmistakably to that conclusion or unless such intention was expressed with irresistible clearness
Having regard to the circumstances under which the amendment was inserted in section 232 by Act XXII of 1936 and also having regard to the context we are not prepared to hold that the Legislature in inserting that amendment intended to effect a fundamental alteration in law with irresistible clearness
Such a great and sudden change of policy could not be attributed to the Legislature and it would be legitimate therefore to adopt the narrower interpretation of those words of the amendment rather than an interpretation which would have the contrary effect p 388 In my opinion regard must be had of this principle of interpretation while construing the expression for enforcing the liability of any surety which has been inserted by way of clause aa in sub section 1 of section 31 by Act 43 of 1985
Considering the amendments introduced in sections 31 and 32 of the Act by Act 43 of 1985 and having regard to the principle of interpretation referred to above I do not find any provision in the said amendments which may indicate that 515 Parliament has evinced an intention to effect a fundamental alteration in the law with irresistible clearness
In this context it would be of relevance to note that while introducing the said amendments Parliament has chosen not to make any alteration in relation to the following matters 1 In the marginal note section 31 is described as special provisions for enforcement of claims by Financial Corporation 
No alteration has been made therein by Act 43 of 1985 and section 31 continues to be a special provision for enforcement of claims by Financial Corporation
2 Parliament has not expressly indicated that an order for payment of money only may be passed against the surety
3 Although in sub sections 8 and 8A of section 32 express provision has been made prescribing the procedure for carrying into effect an order of attachment and sale of property and an order transferring the management of an industrial concern to the Financial Corporation passed under sub section 7 of section 32 no specific provision was made prescribing the procedure for carrying into effect of an order passed under clause da of sub section 7 of section 32 directing the enforcement of the liability of the surety
It cannot be comprehended that while making a provision which would enable passing of an order in the nature of a money decree against a surety on an application under section 31 of the Act Parliament would have refrained from making a corresponding provision prescribing the procedure for carrying into effect of such an order
Having regard to the features referred to above it appears to be more in consonance with the scheme of the Act and the object underlying sections 31 and 32 that by introducing the amendments in sections 31 and 32 of the Act Parliament intended to place the surety on the same footing as the principal debtor in the matter of enforcement of the claims of the Financial Corporation so as to enable the Financial Corporation to obtain relief against the properties of the principal debtor as well as the surety
If considered in this perspective the expression enforcing the liability of any surety in clause aa of section 311 would mean enforcing the liability of a surety in the same manner as the liability of principal debtor is enforced ie by attachment and sale of property keeping in view that the proceedings under sections 31 and 32 of the Act are akin to an application for attachment of property in execution of a decree at a stage posterior to the passing 516 of the decree
This construction would obviate the need for a procedure for carrying into effect of the order passed under clause da of sub section 7 of section 32 of the Act because such an order would be an order for attachment and sale of the property of the surety and it can be carried into effect in accordance with sub section 8 of section 32 which prescribes the procedure for carrying into effect an order for attachment and sale of property
This construction will also preserve the special nature of the proceedings under section 31 and would not result in bringing about a fundamental alteration in the law laid down by this Court with regard to the nature of these proceedings as well as the general law whereunder a surety is to be treated on par with the principal debtor
For the reasons aforesaid I am in agreement with the view of the Division Bench of the High Court on this question and I am unable to concur with the decision of my learned brother Ojha J I would therefore uphold the decision of the Division Bench of the High Court that the petition whereby the appellant had sought the relief of a money decree for payment of Rs 158739120 paise against respondents 2 to 4 was not maintainable and the said relief could not be granted to the appellant in proceedings under section 31 of the Act
As a result the petition filed by the appellant must be dismissed and for the same reason this appeal also must fail
R N J Appeal allowed


Summary:
The lands belonging to the appellants were acquired and they were awarded compensation for their lands
Being dissatisfied with the compensation they made an application for a reference to the Court under section 18 of the Land Acquisition Act 1894
The Collector made a reference to the Additional District Judge and in its statement under Section 19 the Collector included only those lands which were included by the appellants in their application for reference under section 18
The appellants filed an application before the Additional District Judge under section 151 153 of the Code of Civil Procedure for a direction to the Collector to file a revised statement giving the details of the whole of their lands acquired for the purposes of claim of enhanced compensation
The Additional District Judge directed the Collector to furnish a correct statement under section 19
Against the order of the Additional District Judge the Union of India filed a revision petition before the High Court which allowed the petition by holding that the power of the Collector to make a reference was restricted to what was stated by the appellants in their application for reference and only those Khasra Nos
which were specifically mentioned in the Schedule annexed with the application under section 18 could be considered for the purposes of enhancement of the claim of compensation and not the entire land acquired
Hence this appeal against the order of the High Court
650 Allowing the appeal and setting aside the order of the High Court this Court HELD 1
Under Section 18 of the Land Acquisition Act 1894 the only requirement for the person interested who has not accepted the award is to move a written application to the Collector requiring that the matter be referred for the determination of the Court
One of the grounds for not accepting the award is the amount of compensation
Once such application is moved it is the duty of the Collector to make a reference to the Court
Under section 19 of the Act while making the reference the Collector is required to state for the information of the Court the particulars as mentioned in clause a to d of sub section 1 of Section 19 of the Act
Thus it is the duty of the Collector to mention not only the situation and extent of land but even particulars of any trees buildings or standing crops thereon
The agriculturist whose land is acquired may not be fully conversant with the Khasra No or area as entered in the Revenue records and the Union of India or the State acquiring such land cannot be allowed to take any advantage of such ignorance of the agriculturists
Once an application is moved for making a reference under section 18 of the Act it becomes the duty of the Collector to send full information to the Court regarding the entire land acquired and it is thereafter the duty of the Court to decide the matter in accordance with law
657B E 2
From a perusal of the application filed under Section 18 of the Act along with the Schedule annexed therewith it is clear that the appellants were claiming an enhancement in the compensation in respect of the entire land acquired and there was no question of asking for a reference for a limited portion of land
The appellants were not required to pay any Court fees ad valorem on a prayer for enhancement of compensation while moving an application to the Collector for making a reference to the Court under section 18 of the Act
The High Court unnecessarily went into the question of some statement made by the learned counsel for the appellants before the Additional District Judge and examining its validity under Order X of the Code of Civil Procedure and thus committed an error in deciding the matter with a wrong approach and in a technical manner
655E F G 657F Smt Jamilabai vs Shankarlal Gulabchand   cited