JUDGMENT
Badar Durrez Ahmed, J.
1. Notice, limited to the question of jurisdiction. Notice is accepted by Mr Sandeep Aggarwal appearing on behalf of respondents 1 to 4. Respondent No.5 is the Divisional Commissioner, Delhi, to whom the recovery certificate has been forwarded for recovery from the petitioner by way of arrears of land revenue under The Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972. Respondent No. 6 is the company which took the loan from the respondent no. 1. At this stage, to determine the question of jurisdiction, presence of respondent no. 5 & 6 is not deemed necessary. The question of jurisdiction is taken up and is being argued at the first instance.
2. The brief facts are that the respondent no. 6 had entered into an agreement with PICUP (respondent no. 1) for obtaining a loan in respect of its unit at NOIDA (UP). A supplementary loan agreement was also executed on 30.12.1997 by the PICUP. Thereafter, as the respondent no. 6 encountered difficulties in repayment of the initial loan, a rescheduled package was worked out and a supplementary agreement was entered into in respect thereof on 08.03.2002. The said supplementary agreement was entered into at Lucknow. The petitioner, signed the supplementary agreement on behalf of the respondent no. 6 in view of the fact that he was the Chairman-cum-Managing Director of the respondent no. 6. Clause 10 of the said supplementary agreement was as under:-
“10. For the purposes of all the disputes relating to original loan agreements/supplementary agreement (s) and this agreement, the jurisdiction shall be of Lucknow Courts only.”
Clause 4 (d) of the said supplementary agreement provided that the petitioner being the main promoter director of the borrower company (respondent no. 6) shall furnish an irrevocable personal guarantee in favor of the PICUP for due repayment of the outstanding term loan and funded interest. Pursuant to this clause, the petitioner, on the same day at Lucknow itself executed a bond of guarantee in favor of PICUP (respondent no. 1). Clauses 9 and 14 of the said bond of guarantee are relevant for the purpose of this case and they are as under:-
“9. In order to give effect to the guarantee herein contained the corporation shall be entitled to act as if the Guarantors were the principal debtors to the Corporation for all payment and Covenants guaranteed by them as aforesaid to the Corporation.
14. The Guarantors hereby waive all rights which the Guarantors may become entitled to as surety/sureties to compete with the Corporation in obtaining payment of the moneys due or to become due to the Corporation in respect of the said loan in favor of “the Corporation” as against the said Company/Borrower.”
Along with the said Bond of Guarantee, the petitioner also swore an affidavit at Lucknow itself with regard to the execution of the Bond of Guarantee. Para 7 of the said affidavit categorically states that the borrower (respondent no. 6) and the petitioner agreed to the repayment of rescheduled outstanding term loan and funding of interest extended by PICUP and also on the terms and conditions stipulated, including furnishing of the Bond of Guarantee to the respondent no. 1 for repayment on outstanding term loan and funding of loan. Para 8 specifies the property/money belonging to the petitioner which was as per Annexure ‘A’ to the said affidavit.
3. It appears that the rescheduled loan had also not been repaid. Accordingly, PICUP took action u/s 3 of the said Act. A recovery certificate was issued u/s 3 itself on 12.03.2003. A copy of the recovery certificate issued at Lucknow was also marked to the Divisional Commissioner, Delhi. The petitioner has filed this petition fearing that the Divisional Commissioner, Delhi (respondent no. 4) would take coercive proceedings in pursuance thereof against the petitioner and his movable and immovable properties in Delhi. The petitioner has, however, not pointed out any notice or particular action which has been, in fact, taken by the respondent no. 5. Learned counsel for the petitioner submits that she has no copy of any notice that may have been issued by the respondent no. 5 in this regard. Learned counsel appearing on behalf of PICUP also submits that he has no information or knowledge as to whether the respondent no. 5 has taken any steps pursuant to his receiving a copy of the recovery certificate which was marked to him by the Collector, Lucknow. In this view of the matter, it may be relevant to note that the writ petition itself appears to be premature.
4. However, since the question of jurisdiction was taken up at the threshold by the learned counsel for the respondents. This question is being disposed of. Learned counsel for the respondents submits that a Division Bench of this Court in the case of A.K. Surekha v. Pradeshiya Investment Corporation of UP Ltd: (2003) DRJ 98 (DB) squarely covers the present case and, in fact, the clauses and the fact situation also are more or less identical.
5. I am in agreement with the submission of the learned counsel for the respondents that the decision of the Division Bench in A.K. Surekha (supra) squarely covers the present case. The clauses in the Bond of Guarantee set out in para 8 of the said judgment are identical to the clauses of the Bond of Guarantee set out hereinabove in the present case. Even clause 57 of the loan agreement therein which deals with the question of jurisdiction is more or less identical to clause 10 of the supplementary loan agreement in the present case. The said Division Bench, after considering the rival contentions of the parties therein in respect of the question of jurisdiction and after considering several Supreme Court decisions, including the one rendered in the case of Union of India v. Adani Exports Ltd: 2002 1 SCC 567 has concluded as under:-
“28. We have examined the relevant clauses of the agreement and decided cases of various courts on question of territorial jurisdiction. If the principles which have been crystalised by the various courts are made applicable to the facts of this case, the conclusion would be irresistible that this court has no territorial jurisdiction to entertain this petition because in the instant case the respondent had entered into an agreement with the company of the petitioner at Lucknow and in the loan agreement, it was clearly stated that for the purposes of litigation relating to this agreement the territorial jurisdiction shall be of Lucknow courts alone. The petitioner on behalf of the company was signatory to the agreement. Thereafter a separate bond of guarantee was executed. In the bond of guarantee it was clearly agreed that the guarantors herein waive all rights which the Guarantors may become entitled to as surety/sureties to compete with the Corporation in obtaining payment of the moneys due or to become due to the Corporation in respect of the said loan in favor of the Corporation, as against the said Company. In clause 9, the petitioner has agreed that in order to give effect to the guarantee herein contained the corporation shall be entitled to act as if the Guarantors were the principal debtors to the Corporation for all payments and Covenants guaranteed by them as aforesaid, to the Corporation.
29. In this view of the matter, there was no justification or propriety on behalf of the petitioner to have filed a petition in this court for the relief of staying the recovery certificate. It is indeed unfortunate that most of the companies despite all kinds of clear and unequivocal agreements with the public sector undertaking and banks adopt delaying tactics whenever a case of repayment of loans or dues arises. Unless the Courts adopt strict view of the matter it would be difficult to effectively curb this tendency.”
6. In the present case also, it is clear that the supplementary agreement states that for the purposes of litigation relating to the agreement the territorial jurisdiction shall be of Lucknow Courts alone. Here again, the petitioner on behalf of respondent no. 6 was also signatory to the supplementary agreement. A separate Bond of Guarantee was also executed by the petitioner. In the Bond of Guarantee, it was clearly agreed that the petitioner being guarantor would waive rights which the guarantor may become entitled to as surety/sureties to compete with PICUP in obtaining payment of the moneys due or to become due to PICUP in respect of the said loan in favor of PICUP as against the said Company (respondent no. 6). Moreover, in clause 9 of the Bond of Guarantee, the petitioner agreed that in order to give effect to the Guarantee, PICUP would be entitled to it as if the guarantor was the principal debtor to PICUP for all payments and covenants guaranteed by him, as aforesaid, to PICUP. It, therefore, appears that the fact situation is virtually identical with that obtaining in the case of A.K. Surekha (supra). In view of this, it has to be held that this Court does not have the territorial jurisdiction to entertain the present writ petition. In view of the aforesaid discussion, the writ petition is dismissed on the ground that this Court does not have territorial jurisdiction to entertain the matter. However, liberty is granted to the petitioner to approach the appropriate Court to get appropriate relief. There shall be no orders as to costs.