The petitioner is aggrieved with the recovery proceedings initiated, against the salary of the petitioner. The petitioner admittedly has executed a guarantee, with respect to a loan availed by one K. Remanidharan, from the 1st respondent Bank. On the 1st respondent Bank proceeding against the petitioner, as per a specific undertaking given for deduction under Section 37 of the Kerala Co-operative Societies Act, 1969 (for brevity, 'the KCS Act'), the petitioner is before this Court, challenging such recovery against him on the ground that, as a guarantor his liability is only secondary. 2. The learned Counsel for the petitioner contends that the 1st respondent Bank has not even proceeded against the original borrower and that only after such proceedings, the guarantor could be proceeded against. It is trite that the guarantors' liability is joint and several with that of the original borrower and is co-extensive with that of the original borrower. It cannot at all be said that the guarantor had only secondary liability and first proceedings have to be issued against the original borrower and only then against the guarantor. That would be an equitable relief; which has to be considered on the facts.
3. The learned Counsel appearing for the respondent Bank, would submit that, the original borrower was unemployed and the loan itself was granted on the strength of the salary certificates of the three guarantors; one the petitioner and two others by name Vimala T. and Muraleedhara Nair. As early as in 2005, notice was issued to the petitioner also, wherein a demand was made for satisfaction of the loan, in which he had stood as guarantor. The said notice is dated 01.06.2005 produced at Ext.R1(c). It was also averred that subsequent requisition was sent to the employer of all the guarantors on 29.03.2006, 20.09.2008 and 10.11.2009. Sri. Muraleedharan Nair, one of the guarantors was due to retire on 31.12.2013 and the D.T.O, K.S.R.T.C did not comply with the requisitions. As to the other guarantor, the requisition letters were sent to the employer of the said guarantor by name Vimala and the recoveries are also said to be effected from her salary. As of now, an amount of Rs.39,000/- is said to have been recovered.
4. The contention with respect to proceeding against the original borrower also, cannot be answered in the writ petition. On notice being un-served on the 3rd respondent, the original borrower; the petitioner had filed an application to delete the name of the 3rd respondent and the same was allowed at the risk of the petitioner by order dated 26.08.2014. In such circumstance, no such contention can be taken by the petitioner in the above writ petition. The petitioner's contention that the original borrower is to be proceeded against, has to be determined in the context of the petitioner himself being unable to trace out the whereabouts of that person. Admittedly a guarantee was executed and loan is stated to have been disbursed on the security of the salary certificates alone.
5. Though not specifically pleaded in the writ petition, the learned Counsel would take a contention of limitation, since, admittedly loan period was over in 2008 and the proceedings having not been initiated within the three year limitation period. It is to be noticed that the contention of limitation is a mixed question of fact and law and when not specifically urged in the writ petition, the respondent would not have answered it. In any event, notice is seen to have been issued on 01.06.2005 and recovery from salary under Section 37 of the KCS Act was also proceeded with. The clear admission in the writ petition is that the petitioner's salary is deducted from 2010 itself; but the challenge is against such deduction being not under Section 60 of the Civil Procedure Code.
6. In such circumstance, none of the petitioners' contentions can be upheld. The petitioners contention regarding the recovery to be effected only under Section 60 of the Civil Procedure Code is also not sustainable. This Court in Sasidharan Nair v. Trivandrum Co-operative Urban Bank Limited [2009 (2) KLT 280], found that the amounts to be recovered under Section 37 of the KCS Act is not limited by the 1st proviso to Section 60 of the Civil Procedure Code.
The contentions of the petitioner having been negatived, the writ petition would stand dismissed. Parties are left to suffer their respective costs.
K. VINOD CHANDRAN, JUDGE SB