S.Sony vs Alappuzha District Co-Operative … on 29 September, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA.No. 1459 of 2008()


1. S.SONY, S/O SANKUNNAI, AGED 45 YEARS,
                      ...  Petitioner

                        Vs



1. ALAPPUZHA DISTRICT CO-OPERATIVE BANK,
                       ...       Respondent

2. P.A. SAJEEB, S/O ABDUL ASSIS,

                For Petitioner  :SRI.T.RAJESH

                For Respondent  :SRI.V.G.ARUN,SC,ALAPPUZHA DIST.CO.OP.BA

The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice A.K.BASHEER

 Dated :29/09/2008

 O R D E R
                 H.L.DATTU, C.J. & A.K.BASHEER, J.
                        -------------------------------------------
                             W.A.No.1459 of 2008
                         ------------------------------------------
                 Dated, this the 29th day of September, 2008

                                JUDGMENT

H.L.Dattu, C.J.

The second respondent is the principal borrower. Petitioner

was the guarantor. The second respondent had availed a loan from the

first respondent Co-operative Bank. The principal borrower has defaulted

in paying the amounts due to the Bank. The Bank after obtaining

appropriate decree/award, has proceeded to recover the amount due by

proceeding first against the guarantor. It is this action of the first

respondent Bank that was called in question by the guarantor before this

Court by filing W.P.(C) No.16307 of 2008.

(2) The learned Single Judge has rejected the writ petition

by his orders dated 2nd June, 2008.

(3) The primary contention of the guarantor before this

Court is that the second respondent has got enough means and, therefore,

the first respondent Bank has to proceed first against the principal

borrower and if they could not realise the amount due to them from the

second respondent, then only they could proceed against the guarantor.

(4) This submission, of the learned counsel for the

appellant, in our opinion, has no merit whatsoever. It is for the decree

W.A.No.1459 of 2008
2

holder to execute the decree in the way which he wants. It could be either

against the principal borrower or against the guarantor. In these type of

matters the relief sought for by the appellant can never be granted by any

Court. Therefore, the learned Judge was wholly justified in rejecting the

writ petition in limine.

(5) Therefore, while agreeing with the reasoning of the

learned Single Judge, the writ appeal requires to be rejected and it is

rejected.

(6) Consequently, I.A.No.624 of 2008 also stands rejected.

Ordered accordingly.

(H.L.DATTU)
CHIEF JUSTICE

(A.K.BASHEER)
JUDGE
vns