Guarantor's liability in loan from co-operative society.

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 36125 of 2008(A)


1. T.J.PAUL, S/O. T.P. JOSEPH,
                      ...  Petitioner

                        Vs



1. M.B. VIJAYARAGHAVAN NAIR,
                       ...       Respondent

2. AMBIKA VIJAYARAGHAVAN NAIR,

3. THE AREA MANAGER, FOOD CORPORATION OF

                For Petitioner  :SRI.C.A.CHACKO

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT

 Dated :09/12/2008

 O R D E R
                            R. BASANT, J.
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                  W.P.C.No. 36125 of 2008 A
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            Dated this the 9th day of December, 2008

                             JUDGMENT

The petitioner is the guarantor/surety for a loan availed by the first respondent, who is employed by the third respondent, Food Corporation of India. The services of the first respondent has been terminated. Terminal benefits are due to him from the third respondent. The first respondent has not discharged the liability, which he has as the Principal debtor in the transaction, in which the petitioner is a guarantor. The petitioner apprehends that amounts due from the first respondent may be recovered from him as he is one of the guarantors/sureties for the first respondent. Notice has already been received intimating the petitioner of the proposal to recover the amounts from the salary of the petitioner.

2. At this juncture the petitioner has come before this Court. He has admittedly not discharged the liability which the first respondent as principal debtor has. What is the grievance  W.P.C.No. 36125 of 2008 of the petitioner? According to the petitioner amounts are due from the third respondent to the first respondent. That is the only asset of the first respondent. If amounts due from the first respondent to a co- operative society, for which loan the petitioner is one of the sureties, is not satisfied by the amounts which are payable to the first respondent by the third respondent the petitioner will be put to great prejudice and hardship.

3. In the meantime, to defeat the interest of the petitioner the second respondent, i.e. the wife of the first respondent, has filed a petition under the Protection of Women from (Domestic Violence) Act and is attempting to take away all the money which is due to the first respondent from the third respondent. It is hence prayed that appropriate direction may be issued to secure the interests of the petitioner.

4. I find no merit whatsoever in the grievance of the petitioner. The petitioner is a guarantor/surety for a loan advanced to the first respondent by the workers' co-operative society. The petitioner has not so far discharged the liability. The first respondent has also not  W.P.C.No. 36125 of 2008 discharged the liability. If the petitioner has a grievance against the first respondent, he must seek to enforce the claim against the first respondent by a properly instituted suit and seek attachment of the assets of the first respondent in the hands of the third respondent or any other. Without and before doing that the petitioner cannot be permitted to come before this Court with this writ petition and seek to achieve what he could legitimately achieve by filing a suit against the first respondent and by attaching the amounts due to him from the third respondent.

5. This Writ Petition is accordingly dismissed. Needless to say, the dismissal of this writ petition will not in any way fetter the rights of the petitioner to proceed against the first respondent or any assets of the first respondent in the hands of the third respondent or any other in enforcement of the claim, if any, of the petitioner.

(R. BASANT) Judge tm