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Jharkhand High Court · body

2010 DIGILAW 801 (JHR)

Chandrakala Sharma v. Bank of India, through Chief Manager and authorized officer, Bank of India, Zonal Office, Bistupur, Town Jamshedpur

2010-08-11

RAMESH KUMAR MERATHIA

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JUDGMENT Heard the parties. 2. The main grievance of the petitioner is that without taking action against the principal borrower, who is running its business and hold and possess sufficient means to liquidate the Bank loan, the Respondent Bank is proceeding against the petitioner under Securitization & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ( SARFACI Act for short). 3. It appears that the principal borrower M/s Silicon India availed credit facility upto Rs. 30 lacs from the respondent-Bank, for which petitioner stood guarantor on 30.12.2006 after executing all necessary documents. As the principal borrower failed to comply with the terms and conditions of the credit facility and repay the dues, the Bank classified the accounts of the principal borrower as non performing asset (NPA for short) on 30.11.2007 and accordingly issued demand notice on 30.8.2008 under section 13(2) of the SARFACI Act simultaneously against the principal borrower as well as the petitioner. It further appears that the principal borrower hypothecated stock of computers, laptops, digital camera and its accessories and peripherals etc., whereas petitioner furnished property as the security against the guarantee. 4. Mr. Sumit Gadodia, learned counsel for the petitioner, submitted that the Bank is not proceeding against the principal borrower and it should proceed against the petitioner, who is guarantor, only after the dues of Bank is not satisfied after proceeding against the principal borrower. He further submitted that account of the petitioner has not been declared as non-performing asset and therefore no notice could be issued to her in terms of section 13(2) of the SARFACI Act. He also submitted that petitioner on receipt of the said notice under section 13(2) made a representation on 24.11.1985 by registered post but without disposing of the same, the Bank is proceeding against the petitioner. 5. On the other hand, Mr. Gyanendra Kumar, learned counsel for the Bank, submitted that the liability of principal borrower and guarantor is co-extensive. The Bank proceeded against the principal borrower and the petitioner both simultaneously. It is for the Bank to decide against which secured property of the principal borrower or the guarantor it should proceed for realization of dues. In this case, the Bank thought it proper to proceed against the mortgaged property of the petitioner as the properties mortgaged by the principal borrower are wholly insufficient. Petitioner stood guarantor after fully knowing the consequences. In this case, the Bank thought it proper to proceed against the mortgaged property of the petitioner as the properties mortgaged by the principal borrower are wholly insufficient. Petitioner stood guarantor after fully knowing the consequences. He further submitted that petitioner has filed this writ petition with a false story of making representation. He referred to the postal receipt and the statement made on behalf of the Bank that no such representation was received. He therefore submitted that this writ petition should be dismissed with cost. 6. After hearing the parties, I am satisfied that no case has been made out by the petitioner for interference. It is settled position of law that the liability of the principal borrower and the guarantor are co-extensive. The Bank is fully justified in proceeding against the principal borrower and also the guarantor petitioner, simultaneously. It is for the Bank to decide from which mortgaged property, it should try to recover the dues. Moreover, the notice in terms of section 13(2) of the SARFACI Act has rightly been issued against the petitioner. The account of the principal borrower, with the Bank, is only required to be declared as N.P.A., and not the account of the guarantor. Further, it appears that petitioner has tried to make out a case that she has made representation, only for the purpose of filing this writ petition and delaying the matter. The purported postal receipt does not bear any seal or date. The Bank has categorically said that it has not received any such representation. In the facts and circumstances, of this case, the judgment reported in (2004) 4 SCC 311 Mardia Chemicals Ltd. Vs. Union of India is of no help to the petitioner. 7. In the facts and circumstances of the case, I do not find any merit in this writ petition, which is accordingly dismissed.