Judgment and Order : 1. Heard Mr. A. Lodh, learned counsel appearing for the appellants, Tripura Gramin Bank as well as Mr. D. R. Choudhury, learned counsel appearing for the respondent No. 1 and Mr. H. Laskar, learned counsel appearing for the respondents No. 2-3. 2. This is an appeal under Section 100 of the CPC from the judgment dated 30.08.2013 delivered in Title Appeal No. 04 of 2011 by the Addl. District Judge, No. 3, West Tripura, Agartala. By the order dated 30.04.2014 the following substantial questions of law were framed by this Court for hearing of this appeal: (i) Whether the bank can proceed against the guarantor first, without proceeding against the loanee towards realization of money extended as loan? (ii) Whether the judgment and decree passed by the first appellate Court suffers from perversity? Even though leave has been given to the appellants, but Mr. Lodh, learned counsel has categorically submitted that he will not raise any further substantial question of law. 3. This appeal has been filed against the judgment of reversal. The suit was instituted by the respondent No.1 in the Court of the Civil Judge, Jr. Division, Bishalgarh, West Tripura being T.S. 27 of 2008 for declaration and permanent injunction. The plaintiff-respondent No. 1 being an Assistant Teacher in a Government School stood guarantor by executing the letter of guarantee to the effect that if the respondent No. 2 fails or defaults in re-payment of the loan that he has taken from Tripura Gramin Bank, the appellant herein, for business of sweet-meat shop, he would take the burden of re-payment. 4. A loan of Rs. 1,50,000/- was extended to the respondent No. 2. It appears from the records that he had defaulted in the re-payment. It was agreed that the entire loan would be repaid in 16 instalments in the manner as provided in the agreement. Even the bank raised demand for the payment of the outstanding but the respondent No. 2 did not re-pay, rather he had prayed for extension of period of repayment. Even at that time, the guarantor signed the revival letter dated 01.11.2007 and the letter of confirmation dated 12.11.2007. 5. The suit proceeded ex-parte against the defendant No. 1, the respondent No. 2 herein and the defendant No. 2, the respondent No. 3 herein. Thus, the loanee did not contest the suit. Even at that time, the guarantor signed the revival letter dated 01.11.2007 and the letter of confirmation dated 12.11.2007. 5. The suit proceeded ex-parte against the defendant No. 1, the respondent No. 2 herein and the defendant No. 2, the respondent No. 3 herein. Thus, the loanee did not contest the suit. The trial Court after recording the evidence both oral and documentary returned the findings on the issues as framed including those which are as under: (ii) Whether the plaintiff stood as a guarantor in the loan account of defendant No. 1 as claimed by the defendants No. 1, 2 and 3 by showing the letter of guarantee etc? (iii) Whether defendants No. 2 and 3 are entitled to recover the amount of loan from the S/B account No. E/S. 146 of the plaintiff in Bikramnagar Branch of Tripura Gramin Bank to adjust in the loan account of defendant No. 1? (iv) Whether the plaintiff is entitled to recovery of the amount deducted from his S/B account by the defendants No. 2 and 3 with interest by remitting the same in the S/B account of the plaintiff? (v) Whether the plaintiff is entitled to get interest at the rate of 12% per annum and compensate recovery of the amount so far had been adjusted in the loan account of defendant No. 1? 6. The trial court returned the finding that the plaintiff is not entitled to get any relief and in view of that the suit was dismissed. Being aggrieved, the plaintiff filed an appeal under Section 96 of the CPC against the judgment dated 13.09.2010 delivered in T.S. 27 of 2008 by the Civil Judge, Junior Division, Bishalgarh, West Tripura. 7. The said appeal being T.A. No. 04 of 2011 was transferred to the Court of the Addl. District Judge, Court No. 3, West Tripura, Agartala and by the impugned judgment dated 30.08.2013 the said appeal has been allowed by reversing the said finding of the trial court, fundamentally holding that the decision relied upon by the learned counsel appearing for the respondentbank is not applicable in the context of the appeal, because in that report, it was decided that recovery of the debt against the guarantor is permissible. According, to the first appellate court that was a case under the provisions of Section-19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. According, to the first appellate court that was a case under the provisions of Section-19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. It has been therefore observed that from the facts of the case, it is found that the Bank-authority without taking any legal step, suo-moto started recovering from the Bank Account of the appellant as monthly instalments. 8. That apart, from the case record, the appellate court did not find any material that the Bank took any initiative in respect of attachment or selling out the mortgaged property of the principal borrower to adjust the loan amount in the event of failure of repayment of the loan. It is admitted that the Bank did not get any decree against the plaintiff. They also did not file any claim under the provisions of Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. As per decisions of the Apex Court as well as of the High Court action taken by the Bank is not permissible, observed the first appellate court. The first appellate court was of the opinion that the findings of the trial court on the aforesaid issues were not sustainable in law. It ought to have held that the action of the Bank was illegal and they were exercising their powers illegally without the sanction of any authority. 9. Consequently, it was held that the respondents No. 2 and 3 i.e. the Bank were illegally deducting the money from the S/B A/C No. E/S. 146 of the plaintiff lying in the Bikramnagar Branch, Tripura Gramin Bank to adjust the loan outstanding of the respondent No. 1. The Bank should have been restrained from deducting the amount from the S/B A/C No. E/S. 146 of the plaintiff in order to adjust the loan outstanding of the said loanee. In the circumstances, it has been held that the Bank was liable to refund the entire amount which had been deducted so far, from the said S/B Account of the plaintiff along with interest @ 12% per annum. Besides, it has been observed and declared that the plaintiff should get the cost of the entire proceeding on the basis that the plaintiff is entitled to the decree as passed. 10. Besides, it has been observed and declared that the plaintiff should get the cost of the entire proceeding on the basis that the plaintiff is entitled to the decree as passed. 10. Now the said judgment is under challenge by the bank contending that these findings are based on complete misconstruction of law as well of non-reading of the agreement entered with the guarantor. The guarantor agreed and the pledged by the letter of guarantee dated 16th May 2006. For purpose of reference, the pledge as made by the plaintiff is extracted herein below: In this regard I do hereby declare that if the borrower would fail to repay the loan amount with interest accord thereof this will be accrued thereof partly or fully of the said loan and plus interest deduction will be made from the monthly pay bill of mine towards payment of the loan plus interest of the said borrower till the full recovery of the with the said loan is concerned. [Emphasis added] 11. The said pledge was not appreciated by the first appellate court. The plaintiff himself has authorized the bank by the said letter of guarantee against the loan that in the event of the default in re-payment, the bank is authorized to recover the money from the salary bill remitted to the bank account of the plaintiff. 12. Mr. Lodh, learned counsel appearing for the appellant has unfolded the legal position stating that here it is the choice of the creditor from whom, the borrower or the guarantor, he would recover the said amount when he is entitled to recover any amount against the loan account. 13. Mr. D. R. Choudhury, learned counsel appearing for the respondent No. 1, has referred a decision of the Apex Court in Industrial Investment Bank of India v. Biswanath Jhunjhunwala, reported in (2009) 9 SCC 478 , where the Apex Court had occasion to held as under: 14. Mr. Gupta, in support of his submission, placed reliance on a judgment of this Court in Bank of Bihar Ltd. v. Damodar Prasad & Another (1969) 1 SCR 620 . Mr. Gupta, in support of his submission, placed reliance on a judgment of this Court in Bank of Bihar Ltd. v. Damodar Prasad & Another (1969) 1 SCR 620 . In that case, the court referred to a judgment in Lachhman Joharimal v. Bapu Khandu and Tukaram Khandoji (1869) 6 Bombay High Court Reports 241, in which the Division Bench of the Bombay High Court held as under (Lachhman case, Bom HCR p. 242): "The court is of opinion that a creditor is not bound to exhaust his remedy against the principal debtor before suing the surety and that when a decree is obtained against a surety, it may be enforced in the same manner as a decree for any other debt. 15. This Court, while approving the said judgment, observed that (Damodar Prasad case, AIR p. 299, para- 6): "6. ....The very object of the guarantee is defeated if the creditor is asked to postpone his remedies against the surety. In the present case the creditor is a banking company. A guarantee is a collateral security usually taken by a banker. The security will become useless if his rights against the surety can be so easily cut down." “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. Guarantor's liability is co- extensive 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 the 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 "the liability of the surety is co-extensive with the principal debtor, unless it is otherwise provided by the contract". 18. 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 "the liability of the surety is co-extensive with the principal debtor, unless it is otherwise provided by the contract". 18. The term "co-extensive" has been defined in the celebrated book of Polock & Mulla on Indian Contract and Specific Relief Act, Tenth Edition, at page 728 as under: "Co-extensive. - Surety's liability is coextensive with that of the principal debtor. A surety's liability to pay the debt is not removed by reason of the creditor's omission to sure the principal debtor. The creditor is not bound to exhaust his remedy against the principal before suing the surety, and a suit may be maintained against the surely though the principal has not been sued. 19. in Chitty on Contracts, 24th Edition, Volume 2 at page 1031 paragraph 4831 it is stated as under: "4831. Conditions precedent to liability of surety.- Prima facie the surety may be proceeded against without demand against him, and without first proceeding against the principal debtor." 20. In Halsbury's Laws of England, Fourth Edition,Vol. 20, paragraph 159 at page 87 it has been observed that: "159. it is not necessary for the creditor, before proceeding against the surety, to request the principal debtor to pay, or to sue him, although solvent, unless this is expressly stipulated for. 14. Finally, in Biswanath Jhunjhunwala (supra), the Apex Court has enunciated the legal position as crystallized by a series of cases. It is clear therefrom that the liability of the guarantor and the principal debtor is coextensive and not in the alternative. 15. Mr. D. R. Choudhury, learned counsel appearing for the plaintiff-respondent No. 1 has submitted that the bank should have followed the recourse as laid in the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 Act or any other similar act, such as the Act of the 1993. But without following the legal process, as provided by the statute, they have been by directly recovering the money from the salary account maintained by the plaintiff in the Tripura Gramin Bank. Thus, they have acted arbitrarily and in infraction of law. As such, the said action cannot be held sustainable. There is no infirmity in the judgment as returned by the first appellate court. 16. Thus, they have acted arbitrarily and in infraction of law. As such, the said action cannot be held sustainable. There is no infirmity in the judgment as returned by the first appellate court. 16. This Court is unable to accept the submission of Mr. D. R. Choudhury, learned counsel as the loan is preceded by the agreement. That agreement is binding on the parties. Even a clause in the agreement appears regarding recovery from the borrower or in default, from the guarantor, in view of the law developed on interpretation of Section 128 of the Contract Act, is to be observed strictly. Primarily the process would be guided and governed by the provision of the agreement/contract unless any clause is declared by any competent Court as unlawful. Such clause has its sway and enforceability. 17. The pledge as reproduced above, clearly shows that the plaintiff/guarantor has accepted the obligation that in case of default the bank is authorized to recover the amount in instalments from his salary account till the entire outstanding is adjusted and hence this Court having due regard to the law of estoppel cannot support any contention contrary thereto or whether the liability is so extensive or in the alternative or whether the creditor should exercise the options first to recover the money from the borrower or not. 18. Apart that, even if, the liability as enunciated by the Apex Court in Biswanath Jhunjhunwala (supra), is determined as is co-extensive that will not help the plaintiff inasmuch as this court does not have any hesitation to hold that the impugned judgment has failed to survive the scrutiny. It is always the creditor who has final call in the matter, unless contrary of law and is provided by lawful agreement. Having observed thus, the impugned judgment is interfered with and set aside. The decree as drawn thereupon is also quashed. As consequence thereof, the judgment and decree of the trial court is restored. In the result the appeal stands allowed. Draw the decree accordingly and send down the LCRs thereafter.