1. Petitioner is a surety to a loan availed of by respondents 3 and 4 from the first respondent society. Petitioner places reliance on Ext.P1 judgment and also the submission in the counter affidavit that Ext.P2 was issued only by reason of an inadvertent mistake. It is to be noted that in Ext.P1 judgment it was directed that the petitioner shall be proceeded against only after exhausting the remedies against respondents 3 and 4. Petitioner and respondents 3 and 4 in the said judgment are the very same petitioner and respondents herein.
2. Despite the fact that counter affidavit expresses apology for proceeding against the petitioner, it has to be noted that steps subsequent to Ext.P1 judgment has been detailed in the counter affidavit. It is also to be noticed that the counter affidavit states that the petitioner and respondents 3 and 4 availed of separate loans from W.P.(C)No.35123 of 2011 -:2:-
the first respondent, executing mutual guarantee. A default has been committed in all the loans and proceedings were taken for satisfaction of the same. In fact, the petitioner's loan is said to have been satisfied by recovering money from the third respondent's salary. It is subsequent to that arbitration cases were filed as ARC Nos.2933/08 and 2934/08 against respondents 3 and 4. For the separate loans availed of by them, the petitioner stood as a surety. It was as against the liability fixed by the award in the said arbitration case, the first respondent proceeded to effect recovery inter alia from the petitioner also. Subsequent to Ext.P2, it is stated by the first respondent that they had taken steps against the third respondent to recover the amounts due from his retirement benefits. However, it was informed to the first respondent that the third respondent was dismissed from service. The dues of the third respondent is said to be more than Rs.60,401/- and of the fourth respondent about Rs.43,851/-.
W.P.(C)No.35123 of 2011 -:3:-
3. It cannot be said that the respondent bank could be interdicted from effecting recovery proceedings against the surety for all time by reason of Ext.P1 judgment. It is very clear that the first respondent had first proceeded against the original borrowers and on having failed to recover the amounts, proceeded against the surety. There would be absolutely no difficulty in the first respondent proceeding against the surety and recovering the amounts from the surety, when the same is not recoverable from the original borrower. It is trite that the liability of the surety is joint and several with that of the original borrower and the same is co-extensive.
Writ petition is, hence, dismissed.
K. Vinod Chandran, Judge.
sl.