Dismissed

Narayan Shivram Mohite v. the Special Recovery and Sales Officer - Jankalyan Sahakari Bank Ltd.and Ors.

Bombay HC18 Oct 2007WP/6134/2007

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition filed by a guarantor seeking recovery only after the bank exhausted the principal debtor's mortgaged property. The court referred to Supreme Court precedent holding the guarantor's liability is co-extensive, allowing execution against the guarantor first.

What did the court decide?

The writ petition was dismissed summarily as it had no merit.

Narayan Shivram Mohite Vs the Special… — Contract and Commercial Disputes | Bombay HC (2007)

¶1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶2

 CIVIL APPELLATE SIDE

¶3

 WRIT PETITION NO. 6134 OF 2007

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 Narayan Shivram Mohite .... Petitioner

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 versus

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 The Special Recovery
 & Sales Officer...... .. Respondent.

¶7

 Shri L.Ronald Castelino for the petitioner
 Shri Ashish Kamath with Mrs. Meenakshi Mhapankar i/b.
 V.Deshpande & Co. for the respondent.

¶8

 CORAM; A.P. DESHPANDE, J.
DATED; 18TH OCTOBER, 2007

¶9

P.C.;

¶10

 1. The respondent bank has obtained the certificate

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 under section 101 of the Maharashtra C0-operative
 Societies Act against the present petitioner who is a
 guarantor so also against the borrower. The salary of
 the petitioner has been attached to the permissible
 extent with a view to recover the amount. The
 petitioner’s flat is also attached . Aggreived
 thereby the present petition has been filed by the
 guarantor contending that unless and until the bank
 first proceeds against the mortgaged property of the
 borrower, the bank cannot proceed against the property
 of the guarantor.

¶12

 2. Perused Rule 107, which deals with the procedure

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 to be followed for recovery of the amount. The
 learned counsel for the bank has placed reliance on a
 judgment of the Supreme Court in the case of State
 Bank of India Vs. M/s. Indexport Registered and
 others reported in (1992) 3 S.C.C. 159 wherein the
 Supreme Court has categorically laid down that the
 decree holder/bank can execute the decree first
 against the guarantor without proceeding against the
 mortgaged property. The reasoning is that the
 guarantor’s liability is co- extensive with that of
 the principal debtor. The Supreme Court has also held
 that the bank can sue only the guarantor without even
 sueing the principal debtor. If this be the position
 in law there is no substance in the petition and the

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 objection to the recovery cannot be accepted.

¶15

 3. In the result there being no merit in the petition
 the same is dismissed summarily.

Narayan Shivram Mohite v. the Special Recovery and Sales Officer - Jankalyan Sahakari Bank Ltd.and Ors.

Case brief

What is this about?

What did the court decide?

Narayan Shivram Mohite v. the Special Recovery and Sales Officer - Jankalyan Sahakari Bank Ltd.and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

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