G.R. RAJAGOPAL @ DR. RAJAGOPAL S/O LATE CHANDRASHEKAR Vs. KARNATAKA STATE FINANCE CORPORATION NO. 2716, L4, I FLOOR SOWRABHA CHAMBERS SRI HARSHA ROAD LASHKAR MOHALLA, MYSORE REP BY ITS ASSISTANT GENERAL MANAGER

JUDGEMENT

(1.) THE order passed by the II Additional District Judge, Mysore, In Misc. Petition No. 36/2005 allowing the application filed by the respondent herein under Sections 31(1)(aa) and 32 of State Finance Corporation Act (for short hereinafter referred to as the 'Act') is called in question.

(2.) THE records reveal that appellant No. 1 borrowed certain sums of money from the first respondent -Corporation. Appellant No. 2 was the guarantor for the loan transaction. She stood as a personal guarantor for the loan of the first appellant. Since the amounts are not repaid by the appellants herein, the respondent herein filed petition under Sections 31(1)(aa) and 32 of the Act seeking relief of direction by way of enforcement of liability of the appellant No. 2 as surety to pay the amount due to the Corporation and for such other reliefs. Practically, relief sought for is only against appellant No. 2. The said application filed by respondent herein is allowed holding that the respondent herein is entitled to enforce the liability of appellant No. 2 herein as surety to the loan borrowed by the first appellant. Consequential reliefs are also granted in favour of the respondent against appellant No. 2. The same is impugned in this appeal.

(3.) AFOREMENTIONED contentions are not raised before the Court below. Both the contentions are questions of law and fact. Had the appellants raised these points before the Court below, the respondent would have definitely adduced evidence or produced material for opposing the same on facts. The question as to whether appellant No. 1 had acknowledged the debts or the question as to whether notice dated 14.2.2000 is the final notice or not, are all pure questions of fact, which cannot be allowed to be raised for the first time before the appellate Court. So also, the second point raised by the appellants that Assistant General Manager of the respondent -Corporation did not have authority to approach the Court below is a pure question of fact. The Corporation did not have chance to rebut the said question before the Court below, inasmuch as such a contention was not raised before the original Court. Be that as it may, the records prima facie reveal that the prayer sought for by the respondent -Corporation before the Court below is only against appellant No. 2, the guarantor. The respondent -Corporation is stated to have served notice on the appellants on 1.1.2004 invoking the personal guarantee of the second appellant. Thereafter application is filed before District Judge. In view of the same, the claim cannot be said to be barred by time. Ever; otherwise, as has been held by this Court in the case of Gulhati and Another Vs. Karnataka State Financial Corporation and Others, ILR (2007) KAR 44 , the scope of enquiry under Sections 31 and 32 of the Act is very limited and it is in the nature of an application for attachment of property before the judgment. The application under Section 31 of the Act cannot be treated as a plaint and it would not be barred by limitation provided under Article 137 of the Limitation Act. The scope of the investigation is restricted to the claim of the financial corporation, which has to be established in order to entitle it for any of the reliefs as mentioned in sub -section (1) of Section 31 of the Act.