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2010 DIGILAW 2812 (MAD)

P. Mannarsswamy v. Margadarsi Chits Limited

2010-07-12

G.RAJASURIA

body2010
Judgment :- 1. Animadverting upon the order dated 06.08.2008 passed in E.A.No.1691 of 2008 in E.P.No.170 of 2008 in ARC No.665 of 2004 by the X Asst. Judge, City Civil Court, Madras, this civil revision petition is focussed. 2. Heard both sides. 3. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this revision wound run thus: The respondent/decree holder filed the E.P.No.170 of 2008 so as to recover the amount due payable under the Award passed by the authority concerned in ARC No.665 of 2004. While so, E.A.No.1691 of 2008 was filed under Section 47 of CPC by the revision petitioner herein/Judgment Debtor No.2 on the ground that the respondent/decree holder could not pick and choose D2 to recover the entire amount from him without even proceeding as against the principal debtor, namely Judgment Debtor No.1/D1. The lower Court dismissed the said E.A., as against which this revision is focussed on the main ground that the Judgment Debtor No.1/D1 is primarily liable to discharge the debt and D2 and other defendants are only guarantors and accordingly, the revision petitioner prays for dismissal of the E.P. as against D2. 4. The learned counsel for the petitioner/Judgment Debtor No.2 placing reliance on the grounds of revision would submit that the decree holder cannot leave the principal debtor and proceed as against the guarantor/Judgment Debtor No.2 and thereby cause discomfiture to him. 5. Whereas, the learned counsel for the respondent/decree holder by citing the decision of the Honble Apex reported in (2009) 9 SCC 478 [Industrial Investment Bank of India Limited v. Biswanath Jhunjhunwala] would develop his argument to the effect that the Honble Apex Court clearly and categorically highlighted and spotlighted the fact that the course suggested by the revision petitioner is untenable. 6. The point for consideration is as to whether the respondent/decree holder was not justified in proceeding as against D2 alone leaving in the E.P. Judgment Debtor No.1/D1, who happened to be the principal debtor? ON POINT: 7. An excerpt from the decision of the Honble Apex Court reported in (2009) 9 SCC 478 (cited supra) would run thus: "16. In SBI v. Indexport Registered this Court held that the decree holder bank can execute the decree against the guarantor without proceeding against the principal borrower. The guarantors liability is coextensive with that of the principal debtor. 17. An excerpt from the decision of the Honble Apex Court reported in (2009) 9 SCC 478 (cited supra) would run thus: "16. In SBI v. Indexport Registered this Court held that the decree holder bank can execute the decree against the guarantor without proceeding against the principal borrower. The guarantors liability is coextensive with that of the principal debtor. 17. In that case, this Court further observed that: (Indexport case, SCC p.164, para 10) "10.....The execution of the money decree is not made dependent on first applying for execution of the mortgage decree. The choice is left entirely with the decree holder. The question arises whether a decree which is framed as a composite decree, as a matter of law, must be executed against the mortgage property first or can a money decree, which covers whole or part of decretal amount covering mortgage decree can be executed earlier. There is nothing in law which provides such a composite decree to be first executed only against the [principal debtor]." The Court further observed that (Indexport case, SCC p.165, para 13) "the liability of the surety is coextensive with that of the principal debtor, unless it is otherwise provided by the contract." A mere poring over and perusal of the cited judgment would amply make the point clear that the decree holder in a case of this nature is entitled to proceed as against Judgment Debtor No.2 and he cannot dictate terms to the decree holder. 8. The learned counsel for the petitioner would cite the following decisions of the Honble Apex: (i) (2004) 6 SCC 758 [Pawan Kumar Jain v. Pradeshiya Industrial and Investment Corporation of U.P. Ltd., and others], an excerpt from it would run thus: "8. In our view, the above set out provisions of the U.P. Act are very clear. Action against the guarantor cannot be taken until the property of the principal debtor is first sold off. As the appellant has not sold the property of the principal debtor, the action against the appellant cannot be sustained. In our view, the above set out provisions of the U.P. Act are very clear. Action against the guarantor cannot be taken until the property of the principal debtor is first sold off. As the appellant has not sold the property of the principal debtor, the action against the appellant cannot be sustained. We, therefore, set aside the recovery notice." (ii) 2006 AIR SCW 4925 [Ashok Mahajan v. State of U.P. & others] A mere perusal of those two decisions would evince and evidence that those decisions are relating to the U.P. Public Moneys (Recovery of Dues) Act and in the process of interpreting the provisions of the Act, the Honble Apex Court arrived at such a conclusion. But here, the factual scenario is not the one involved in those two decisions. However, the recent decision of the Honble Apex Court cited on the side of the decree holder reported in (2009) 9 SCC 478 (cited supra) would clearly display and demonstrate that in matters of this nature, straightaway EP could be filed as against any one of the judgment debtors. 9. At this juncture, I recollect and call up the maxim: "Boni judicis est lites dirimere, ne lis ex lite oritur; et interest reipublicae ut sint fines litium – It is the duty of a good judge to prevent litigations, that suit may not grow out of suit, and it concerns the welfare of a state that an end be put to litigation." Accordingly, the recent precedent of the Honble Apex Court reported in (2009) 9 SCC 478 (cited supra) governs the field and it should be adhered to. Therefore, I could see no merit in this revision and the same is dismissed. No costs. Consequently, connected miscellaneous petition is closed.