IN THE DEBT RECOVERY APPELLATE TRIBUNAL AT CHENNAI
DATED THE 4TH MARCH, 2005
PRESENT: HON’BLE JUSTICE DR. PRATIBHA UPASANI
CHAIRPERSON
RA-43/2004
(OA-866/1999-DRT, Bangalore)
BETWEEN:
State Bank of India,
Commercial Branch,
Industrial Estate, Rajaji Nagar,
Bangalore-560 044.
… Appellant
AND
V.N. Anantha Krishnan,
S/o. Vadiraj,
No.3, Somashekara Layout,
Basaveshwaranagar,
Bangalore-560 079.
… Respondent
Appearances:
1. Mr. S. Sethuraman, Advocate for the Appellant Bank.
2. Respondent in person.
: O R D E R :
1. This substantive appeal is filed by the appellant/Original applicant
State Bank of India, being aggrieved by the Judgement and Order
dated 29.10.2004, passed by the Learned PO of DRT, Bangalore,
in OA-866/1999.
By the impugned Judgement and Order, the Ld. PO allowed the OA
with cost in favour of the Bank directing defendants No.1 to 5
to personally pay to the applicant Bank jointly and severally,
sum of Rs.11,19,479.19p with subsequent interest at the rate
of 15.80% p.a. compounded quarterly from the date of application
till the date of realisation.
He further gave direction with respect to the enforcement
of securities by giving direction that the applicant Bank
should cause the sale of Schedule ‘A’ hypothecated properties,
Schedule ‘B’ mortgaged property belonging to defendant No.4 and
Schedule ‘C’ mortgaged property belonging to defendant No.6, for
the purpose of realisation of the above debt.
A further direction, thereafter, was given that the applicant
Bank should proceed against the Schedule ‘C’ property of
defendant No.6 only as a last resort, and it is this last direction
which is hurting the applicant Bank and hence appeal to this
Appellate forum on this limited issue and ground.
2. Few facts which are required to be stated are as follows.
3. Defendant No.1 Aparna Creations is a Partnership firm of which
defendants No.2 to 5, are the partners. Defendant No.6 is arraigned
in his status as a guarantor. Defendant No.1 firm represented by its partners
approached the applicant Bank for certain credit facilities.
Accordingly, the applicant Bank on consideration of their request
sanctioned Medium Term Loan of Rs.28.20 lakhs on 21.8.1996.
The defendants accepted the terms and conditions of sanction.
Defendants No.1 to 5 fully availed and utilized the said facility.
Defendants No.2 to 5, apart from being partners of defendant
No.1 firm had also personally guaranteed due repayment
of the debt alongwith guarantor defendant No.6.
Usual security documents were executed by the defendants.
Defendants No.2 to 5, again approached alongwith
defendant No.6, the appllicant Bank seeking grant of credit
facilities. In consideration thereof, the applicant Bank sanctioned
Cash Credit (Mundy Type) of Rs.7 lakhs and Cash Credit (Receivables)
of Rs.19 lakhs. Again, security documents were executed and
defendants No.2 to 5 and defendant No.6 stood as guarantors.
In addition to the primary security of hypothecated machineries,
the defendants No.4 to 6 also created equitable mortgage
of their property set out in Schedules ‘B’ and ‘C’ respectively,
in favour of the applicant Bank towards due security of both
the credit facilities. Revival letters were also executed by defendants
acknowledging the availment of credit facilities.
However, thereafter, the defendants’ account became
irregular and they committed defaults. The applicant Bank,
therefore, issued legal notice recalling the outstanding amount
which was due to the Bank, but there was no response.
Hence, the Bank was constrained to file the OA in DRT, Bangalore.
4. Defendant No.1 firm remained exparte despite service.
Defendant No.4 filed Written Statement, which was adopted by
defendants No.2 & 3. Defendants No.5 & 6 filed their respective
Written Statements separately.
…4/
5. Defendants No.2 to 4 admitted being partners of defendant
No.1 firm. Sanction of two facilities by the applicant Bank was
also admitted. It was pleaded that loans were borrowed from
the applicant with complete consensus between the defendants
No.4 to 6.
It was also contended that the entire transaction
was carried by defendants No.5 & 6 only and that they
could not turn around and repudiate their liability.
In short, it was contended that defendants No.5 & 6 were
managing the affairs of the partnership firm and the transaction
with the Bank, that defendant No.4 was induced by
defendants No.5 & 6 to start a business with involvement
of other family members with the partnership firm.
But they complained of foul play played by defendants No.5 & 6.
Thus, the thrust of the entire defence of defendants No.2 to 4 was
that only defendants No.5 & 6 were liable to the Bank.
6. Defendant No.5 filed a separate Written Statement denying
that he approached the Bank for credit facilities as averred in the plaint.
He pleaded ignorance about sanction on term and conditions.
According to him, defendant No.4 was exclusively handling
the loan transaction and that defendant No.1 firm had incurred
loss due to mal-administration and mishandling of financial
matters solely by defendant No.4 and, therefore, defendant
No.5 should not be held responsible.
…5/
7. Defendant No.6 contended that the OA was misconceived.
He admitted having stood as guarantor but his contention was that he
stood as guarantor only for the 5th defendant in respect of the business
agreed to be carried on and also in accordance with the ratio (i.e. 25%)
of the partnership capital under the terms and conditions of the partnership deed.
According to him, the applicant and defendants No.2 to 4 took undue advantage
of his goodness and that on several nominal printed forms his signatures were
obtained. Contention is taken that applicant Bank should proceed first against
the principal debtors and thereafter, for the balance amount, if any, the
Bank should approach the guarantors.
8. Parties filed their respective Affidavits and arguments of both
sides were heard by the Ld. PO. Thereafter, the Ld. PO came to
the conclusion on the basis of the material placed before him that the
Bank had proved its case against all the defendants.
As far as the case of defendant No.6 was concerned, the Ld.
PO observed that though the Guarantee Agreements were not
disputed by any of the executants including defendant No.6, status
of defendant No.6 was totally different from the status of defendants
No.2 to 5. The Ld. PO observed that defendants No.2 to 5 were
not only partners but were also guarantors while defendant
No.6 was an outside guarantor and that because of
the negligence of the Bank with respect to the
hypothecated goods, defendant No.6 was entitled to protection
given by Section-139 of the Indian Contract Act.
Observing as above with respect to defendant No.6,
the Ld. PO, however, said that though defendant No.6 was
entitled to be absolved from the entire guarantee liability, he could
not avoid any liability with respect to mortgage because his liability
as a mortgagor remained intact. He observed that liability of
defendant No.6 emanating from his position as a guarantor was
not to be mixed up with his liability emanating from his status
as a mortgagor. He observed that defendant No.6 had mortgaged ‘C’ Schedule
property to secure the loans given to defendant No.1.
He, however, went on to observe further that though liability
of defendant No.6 was fixed in his capacity as a mortgagor,
the fact remained that defendant No.6 was not the principal
borrower and, therefore, he was inclined to extend the benefit
of the decision given by the Karnakata High Court in 1997(2)
Kar. L.J. 610, which held that surety’s asset should be sold only
as a last resort. Therefore, he gave a peculiar direction that property
of defendant No.6 i.e. ‘C’ Schedule property should be taken resort
to by the applicant Bank only as a last resort.
9. I have heard Mr. S. Sethuraman, Advocate for the appellant
Bank and the respondent/Original defendant No.6 Mr. V.N.
Anantha Krishnan, who appeared in person. I have also gone
through the proceedings and relevant case laws cited across the bar
and in my view, the view taken by the Ld. PO of DRT, Bangalore,
is contrary to the Judgement of the Hon’ble Supreme Court and it has
to be said that the reliance placed upon by the Ld. PO on
Karnataka High Court (supra), was erroneous.
Section-128 of the Indian Contract Act, 1872, lays down
categorically that liability of the surety is co-extensive with
that of the principal debtor, unless it is otherwise provided by the contract.
In AIR 1969 Supreme Court 297
(The Bank of Bihar Ltd. Vs. Dr. Damodar Prasad & Another),
this is what the Supreme Court has observed :-
“Under Section 128, save as provided in the contract,
the liability of the surety is co-extensive with that of the principal
debtor. The surety thus becomes liable to pay the entire
amount. His liability is immediate. It is not deferred until
the creditor exhausts his remedies against the principal debtor.
In the absence of some special equity the surety has no right to
restrain an action against him by the creditor on the ground that
the principal is solvent or that the creditor may have relief against
principal in some other proceedings. Likewise, where the creditor
has obtained a decree against the surety and the principal,
the surety has no right to restrain execution against him until
the creditor has exhausted his remedies against the principal.”
10. Again, the Supreme Court in AIR 1992 SC 1740
(State Bank of India Vs. M/s. Indexport Registered & Others)
stated that when the decree is a composite money decree being
both personal against all the defendants including guarantor
as well as mortgage decree without limitation on execution,
then the decree holder cannot be forced to first exhaust remedy by
way of execution of mortgage decree alone and then to proceed against guarantor.
11. In view of the above stated Supreme Court Judgements, the reliance
placed by the Ld. PO on the Karnataka High Court Judgement reported in II (1997)
BC 157 (S.V. Apparao Vs. Vijaya Bank & Another), was erroneous.
It was held by the Karnataka High Court, inter alia, in this case
that liability of the surety commences when execution against principal debtor
is impossible and that the precaution that the executing Court must take is to
first ensure that reasonable efforts for execution have been made as against
the principal debtor. It has to be stated that the proposition of law enunciated
in the Karnataka High Court judgement is not in consonance with the law
laid down by the Supreme Court in the above mentioned two cases (supra)
and, therefore, has to be ignored.
12. The Ld. PO also appears to have unduly placed reliance upon the statement made by the Bank’s witness in cross-examination that the Bank was not knowing the exact hypothecation goods and hence they were not shown in the Schedule of the application. Relying only on this statement the Ld. PO has sought to give benefit of Section-139 of the Indian Contract Act to defendant No.6. For the sake of convenience, Section-139 of the Contract Act can be reproduced below :-
…9/
“139. Discharge of surety by creditor’s act or
omission impairing surety’s eventual remedy –
If the creditor does any act which is inconsistent with the right of the
surety, or omits to do any act which his duty to the surety requires
him to do, and the eventual remedy of the surety himself against
the principal debtor is thereby impaired, the surety is discharged.”
The proceedings, in fact, reveal that the Bank sold the hypothecated goods
and secured Rs.25 lakhs. There was no question of any negligence and the statement
quoted by the Ld. PO in his impugned Judgement appears to be torn out of context.
His finding, therefore, on this point is also be to rejected.
13. In view of the provision of law incorporated in Section-128 of the
Contract Act and reiterated by the Supreme Court, the Ld. PO was not correct in
giving the direction to the Bank that the Bank should proceed against the ‘C’
Schedule property of defendant No.6, only as a ‘last resort’.
In fact, it ought to have been held that property of defendant No.6 also
was liable and accessible and available for execution of the decree against
defendants No.1 to 5, and the decree ought to have been joint and several
against all the defendants including defendant No.6. The Ld. PO placed defendant
No.6 in a special category as “outside guarantor”, when no such category exists in law.
The impugned Order will have, therefore, to be set aside and the appeal will have
to be allowed. Accordingly, following order is passed.
…10/
: O R D E R :
Regular Appeal RA No.43/2004, is hereby allowed in terms of Prayer
Clause-6 of the Appeal Memo and the impugned Order dated 29.10.2004,
passed by the Ld. PO of DRT, Bangalore, is set aside as against
defendant no.6 and is substituted as follows :-
OA is allowed with cost and defendants No.1 to 6 are held jointly
and severally liable to pay to the applicant Bank sum of Rs.11,19,479.19p
with further interest at the rate of 15.80% p.a. compounded quarterly from
the date of filing of the OA till realisation.
Direction given by the Ld. PO in the last two lines of the impugned Order
giving direction to the Bank to proceed against the ‘C’ Schedule property
of defendant No.6, only as a last resort, is hereby set aside. Rest of the Order remains as it is.
Regular Appeal RA-43/2004, is disposed of in the above stated terms.
(Dictated to PS, transcript corrected, pronounced & signed by me in the open court today 2.3.2005).
Sd/-
[ JUSTICE DR. PRATIBHA UPASANI ]
CHAIRPERSON
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