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2022 DIGILAW 43 (TRI)

Sanjib Debbarma v. State of Tripura & 6 Others

2022-02-01

S.TALAPATRA

body2022
JUDGMENT S. Talapatra, J. - Heard Mr. DR Choudhury, learned senior counsel assisted by Mr. S Sarkar, learned counsel appearing for the petitioner as well as Mr. PK Debnath, learned counsel appearing for the respondent No.2, Tripura Schedule Castes Cooperative Development Corporation Ltd., Agartala. Also heard Mr. D Bhattacharjee, learned GA assisted by Mr. K De, learned Addl. GA appearing for the respondents No. 1, 3, 4, 5 & 6. Despite due notice from this court, none appears for the respondent No.7. 1. The relevant facts which led to filing of this writ petition may be encapsulated at the outset. The petitioner is a Lower Division Clerk (LDC, for short) employed in the Central Training Institute, Sepahijala, Tripura. There is no dispute that when Smt. Rekha Das, the respondent No.7 herein, took a loan from the respondent No.2, the petitioner stood as guarantor against the said loan and the letter of guarantee was duly executed and that is available with the reply filed by the respondent No.2 (Annexure-H to the said reply). The letter of guarantee provides inter alia the following terms and conditions which were agreed by the respondent No.2 and the petitioner: 1. That, the guarantee shall be continuing security of the accommodation granted to the Loanee/Borrower till full repayment of the same. 2. That, in case the Loanee/Borrowers fails to repay consecutive 3 (three) installments, as per schedule of repayment, the Corporation shall be entitled to issue notice to the Loanee/borrower first for depositing the arrears of installments and if the Borrower fails to comply with the said Notice, then the Corporation shall have the right to request the DDO of the Guarantor to recover the said due installments from the salary of the Guarantor. 3. That, in case the Loanee/Borrower fails to reply the entire loan with interest or part thereof, the Guarantor shall be liable to pay the same from his monthly salary bill and the DDO has been authorized accordingly to deduct the due installments/entire outstanding loan with interest in easy installments from the monthly Salary Bill of the Guarantor. 4. That, in case of retirement or death of the Guarantor, the loan amount be deducted out of DCRG payable to my legal heirs. 5. 4. That, in case of retirement or death of the Guarantor, the loan amount be deducted out of DCRG payable to my legal heirs. 5. That, this Guarantee shall be applicable to the 'ultimate balance' that become due to the Corporation from the outstanding amount repayable by the Loanee/Borrower, the Corporation shall be entitled to recover the said ultimate balance? of the outstanding loan amount from the Guarantor or his/her legal heirs. 6. That, the guarantee shall be enforceable notwithstanding any change in the name of the Corporation. [Emphasis added] 2. The other part of the recital in the letter of guarantee is not material in the present context. 3. The petitioner has averred that the respondent No.2 has on 15.01.2021 written a letter to the Commandant, Central Training Institute stating that the borrower has failed to pay the instalments consecutively and the total outstanding stands at Rs.2,85,000/- as on 06.12.2017. Having referred to the said letter of guarantee, the said Drawing and Disbursing Officer has been requested to recover the outstanding from the petitioner's salary bills. It has been stated by the petitioner that the DDO has started recovery of the said outstanding from his salary bills. The said action has been challenged by the petitioner. 4. Mr. Choudhury, learned senior counsel appearing for the petitioner has submitted that the primary liability lies with the borrower to satisfy the loan. The guarantor, only in case of the borrower's failure to repay the loan amount, would be responsible for the payment. There had been no action against the borrower but the guarantor (the petitioner herein) has been asked to repay the loan. This is grossly against the agreement of loan as well as the letter of guarantee. He has submitted that unless the property, other assets of the borrower are attached and liquidated, the guarantor will have no liability whatsoever. 5. Mr. PK Debnath, learned counsel appearing for the respondent No.2 has quite assertively stated that a series of notices were issued to the loanee, namely, Smt. Rekha Das, (the respondent No.7 herein) starting from 06.06.2018 to 06.03.2019. Even a warning letter was issued to the effect that unless the outstanding is paid, the appropriate action will be taken. 5. Mr. PK Debnath, learned counsel appearing for the respondent No.2 has quite assertively stated that a series of notices were issued to the loanee, namely, Smt. Rekha Das, (the respondent No.7 herein) starting from 06.06.2018 to 06.03.2019. Even a warning letter was issued to the effect that unless the outstanding is paid, the appropriate action will be taken. Only thereafter, on 08.02.2022 vide Annexure-D to the reply filed by the respondent No.2, the DDO of the petitioner was requested to recover the outstanding loan amount from the petitioner in monthly instalments of Rs.8,000/- till the entire outstanding is paid. According to the respondent No.2, such request was repeatedly made and only thereafter, the DDO of the petitioner started deducting the said instalment from the salary bills of the petitioner. 6. Having appreciated the submissions of the learned counsel for the parties, this court is confronted fundamentally with two questions, viz., (i) Whether the petitioner as a guarantor can claim that he cannot be pressed for recovery of the outstanding loan amount unless every bit of effort is exhausted for recovering the loan amount? and (ii) Whether clause 8 of the loan agreement, as referred by Mr. Choudhury, learned senior counsel, debars the respondent No.2 from recovering the outstanding loan amount notwithstanding the clause in the letter of guarantee which has provided that in case the Loanee/Borrowers fails to repay consecutive 3 (three) instalments, as per schedule of repayment, the Corporation shall be entitled to issue notice to the Loanee/borrower first for depositing the arrears of installments and if the Borrower fails to comply with the said Notice, then the Corporation shall have the right to request the DDO of the Guarantor to recover the said due instalments from the salary of the Guarantor? 7. Clause 8 only provides that the Borrower shall be liable to repay the sum with interest and other charges but the collateral agreement of guarantee has created the security by way of guarantee and the guarantor's liability is co-terminus to the liability of the loanee. It is the option of the financial agency or the bank to decide from whom they would recover the outstanding.8. 8. It is the option of the financial agency or the bank to decide from whom they would recover the outstanding.8. 8. But in this case, from the records as produced by the respondent No.2, this court is satisfied that several attempts were made to recover the loan amount from the petitioner, but all went in vain and only thereafter, the request was made to the DDO of the petitioner in terms of the letter of guarantee (Annexure-H to the reply filed by the respondent No.2) to recover the outstanding amount in several instalments from the salary bills of the petitioner. Thus, the contention of Mr. Choudhury, learned senior counsel is unacceptable. 9. In a similar case, in Jayanta Majumder v. State of Tripura & 6 Ors [order dated 17.01.202 delivered in WP(C) 630 of 2021] this court has already enunciated the position of law. Therefore, it is no required to repeat as regards the co-terminus liability of the guarantor. Hence, the clause 8 of the agreement of loan cannot act as saviour of the petitioner. 10. Having observed thus, this court does not find any illegality in the action of the respondent No.2. 11. Accordingly, this writ petition, being bereft of merit, stands dismissed. 12. There shall be no order as to costs.