CIVIL APPEAL 416 of 2008 on 5 January 1993

1.

2. Whether the impugned judgment and decree is a result of misreading and misinterpretation of evidence on record more particular statement of PW-1 and Ext. PW3/A to D?

Whether an agreement which is endorsed by financer can be ignored during the realization of amount by the financer?

4. PW-1 Sohan Singh Record Keeper of Judicial Record Room, Bilaspure produced copy of order dated 5.1.1993 Ex. PW3/F, passed in case number 191/1 of 1992 titled as State Vs. Amarnath R/o Nihal. Perusal of this order transpires that it is an order passed in a complaint filed by plaintiff with reference to a dispute regarding purchase of Durga Kalan Grameen Laghu Udhyog Association for a consideration of Rs. 15,50,000/-. In this complaint, accused Amarnath was discharged by the Chief Judicial Magistrate, Bilaspure holding that dispute was civil in nature and no offence under Sections 420 and 406 IPC was prima-facie made out. There is nothing in the statements of PW-1 or in the order dated 5.1.1993 Ex. PW3/F having bearing on the present case. 5. Ex. PW3/A is a copy of receipt for Rs. 50,000/- issued on letter head of M/s Sunrise Malt Pvt. Ltd in favour of the plaintiff. Ex. PW3/B is a notice under Section 80 of CPC issued to Managing Director of the defendant stating therein that plaintiff is a share holder as well as creditor of M/s Sunrise Malt Pvt. Ltd. having right to recover an amount of Rs. 3,50,000/- from Sunrise Malt Pvt. Ltd. and thus the defendant has been asked to pay said amount to the plaintiff out of the amount recovered from M/s Sunrise Malt Pvt. Ltd. by the defendant. Ex. PW3/C is postal receipt of the notice sent to the defendant and Ex. PW3/D is acknowledgement of the receipt of the said notice by the defendant. 6. Plaintiff is claiming his right to recover Rs. 3,50,000/- from defendant on the basis of purchase of shares of M/s Sunrise Malt worth Rs. 3,00,000/- and also advancing Rs. 50,000/- to the said company. However, there is nothing on record showing any agreement between the plaintiff and the defendant to indemnify the plaintiff after recovery of any amount from M/s Sunrise Malt Pvt. Ltd. by the defendant. There is no privity of contract between plaintiff and the defendant. Nothing on record has been placed establishing preferential right of the plaintiff over the defendant.

7. So far as right of creditor to recover amount is

concerned, State Financial Corporation is a statutory corporation having preferential right to recover the amount from the defaulter M/s Sunrise Malt Pvt. Ltd. under Section 46 (B) of the State Financial Corporation Act, 1951 which reads as under:- 46B. Effect of Act on other laws--- 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 an 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.

8. In view of provision of Section 46B, right of the State Financial Corporation to recover is not only preferential over the contract, but also other laws. 9. Therefore, the plaintiff was not having any right and cause of action to file suit against the defendant and the trial court as well as first appellate court has correctly and completely appreciated the documents and statements, particularly referred in substantial questions of law and there is no misreading and/or misinterpretation of evidence on record and there is no material irregularity, illegality, perversity or any other infirmity in the impugned judgment warranting interference of this Court as raised in substantial questions of law referred hereinabove. Substantial questions of law are answered accordingly and appeal is dismissed being devoid of merit alongwith pending applications, if any.

22[nd] November 2016 @nant

(Vivek Singh Thakur) Judge