Writ petition challenging recovery action against a guarantor. Court held that creditor can legally proceed against one joint and several guarantor, and other defaulters must seek contribution later.
Petitioner's challenge to the recovery proceedings is not accepted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
MONDAY, THE 1ST DAY OF OCTOBER 2012/9TH ASWINA 1934
WP(C).No. 12745 of 2010 (P)
PETITIONER(S):
RADHAKRISHNAN S/O.VISWAMBHARAN, PUNAMCHERRY HOUSE, P.O.PADI KODALY, MATTATHOOR VILLAGE, MUKUNDAPURAM TALUK THRISSUR DISTRICT.
BY ADVS.SRI.PAUL JACOB
SRI.K.R.MURALI
RESPONDENT(S):
1. DISTRICT COLLECTOR, THRISSUR.
2. THE TAHSILDAR, (RR), MUKUNDAPURAM TALUK.
3. SANTHY, W/O.LATE ANIL.K.H., KAREKKADAN HOUSE, P.O.KUTTICHIRA, KUNDUKUZHIPADAM THRISSUR.
4. KEERTHI, (MINOR), D/O.LATE ANIL, REPRESENTED BY MOTHER 3RD RESPONDENT SANTHY -DO- -DO-
5. KARTHIK, (MINOR), D/O.LATE ANIL, REPRESENTED BY MOTHER 3RD RESPONDENT SANTHY
-DO- -DO-
6. SHAJU, KIZHANGUMPULLY HOUSE, P.O.PADY, PIN-680 699, MATTATHOOR VILLAGE.
R2 BY SR. GOVERNMENT PLEADER SMT.P.A.REZIYA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
mns
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: TRUE COPY OF DEMAND NOTICE ISSUED BY THE LIQUIDATOR TO THE PETITIONER DATED 30.07.2008.
EXT.P2: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE DEPUTY TAHSILDAR, MUKUNDAPURAM AND DISTRICT COLLECTOR, THRISSUR.
RESPONDENTS' EXHIBITS: NIL
//TRUE COPY//
P A TO JUDGE
ANTONY DOMINIC, J.
------------------------------W.P.(C)No.12745 of 2010
Dated this the 1st day of October, 2012
JUDGMENT
Petitioner is a guaranteer of a chitty loan availed by one Anil, who is no more. The sixth respondent is another guaranteer. It appears that the chitty in question was conducted by a company by name M/s.Sreethilakam Chits and Finance Private Ltd. The company was ordered to be wound up by this Court. Thereafter the official liquidator filed C.C.No.221/2005 against the defaulters. Accordingly a decree was obtained and revenue recovery action has now been initiated against the petitioner. It is challenging the recovery action, the writ petition is filed. The contention raised by the counsel for the petitioner is that he is only one of the guaranteers and that respondents 3, 4 and 5, the wife and children of the deceased principal debtor and also the sixth respondent, the other guaranteer are available to be proceeded against and therefore, the recovery action initiated against the petitioner is illegal.
W.P.(C) No.12745 of 2010
2
question. In such a case if the creditor has chosen to proceed against one of the defaulters, such a choice exercised by the creditor is perfectly legal. In the recovery proceedings if the petitioner alone is made liable to discharge the dues, the remedy available to him is to take steps for recovery of the proportionate contribution from the other defaulters. However that does not render the recovery action illegal for any reason.
In such circumstances, I do not find any merit in the challenge raised by the petitioner against the recovery proceedings initiated against him.
Sd/ANTONY DOMINIC JUDGE
/True copy/
P.A. To Judge
vpv
1 issue framed by the court
Whether recovery action initiated against one guarantor while the principal debtor and other guarantors are available is illegal.
RADHAKRISHNAN S/O.VISWAMBHARAN
DISTRICT COLLECTOR, THRISSUR
SANTHY W/O.LATE ANIL.K.H.
KEERTHI
KARTHIK
SHAJU
ANTONY DOMINIC
As recorded by the court registry
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