IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 31ST MARCH 2008 / 11TH CHAITHRA 1930 WP(C).No. 8806 of 2008(W) ------------------------- PETITIONER: -------------- KRISHNARAJ S/O.KRISHNAN K.N, AGED 53 YEARS "RAJEEVAN", TALAP, KANNUR. BY ADV. SRI.N.J.JOHNSON RESPONDENTS: ----------------- 1. THE INDIAN BANK KANNUR BRANCH, REP.BY ITS BRANCH MANAGER, KANNUR-670 001. 2. THE CHIEF MANAGER/AUTHORISED OFFICER, INDIAN BANK FORT ROAD KANNUR-670 001. 3. SHYBIND P.M. S/O.RAGHAVAN [LATE] "SHEENAS", PO CHIRAKKAL, KANNUR-670 001. BY SRI.T.K.AJITH KUMAR, SC FOR R1 AND R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. =============== W.P.(C) NO. 8806 OF 2008 W ==================== Dated this the 31st day of March, 2008 J U D G M E N T Petitioner was a guarantor to an education loan availed of by the 3rd respondent. Admittedly, default was committed in repayment and proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act have been initiated. 2. The prayer made in this writ petition is that before proceeding against the properties mortgaged by the petitioner being a guarantor, the properties mortgaged by the principal debtor, the 3rd respondent herein should be proceeded against. Petitioner submits that similar relief has been granted by the Supreme Court in Pawan Kumar Jain v. The Pradeshiya Industrial and Investment Corporation of U.P. Ltd. And Ors.(2004(6) JT 305). 3. Ordinarily, it is at the option of the creditor to proceed against of or any of the properties mortgaged and the departure from that general principle is made in the judgment referred to by the learned counsel for WPC 8806/08 :2 : the petitioner. This is in view of the provisions contained in the U.P Public Moneys (Recovery of Dues) Act, 1972. Therefore, the legal principle canvassed by the petitioner cannot be accepted. 4. The learned counsel for the Bank on instructions submit that tenders have been invited for the sale of the properties mortgaged by the principal debtor as also the petitioner. It is stated that the last date for receiving tenders in respect of the mortgaged properties offered by the principal debtor is expiring today and that these tenders are scheduled to be opened on 2/4/2008. It is also stated that in so far as the tenders invited in respect of the properties mortgaged by the petitioner is concerned, the last date for receipt of tenders is 7/4/2008 and it will be opened only on 8/4/2008. From this, it is evident that the Bank is taking steps for realising its dues by initially proceedings against the properties of the principal debtor. Therefore, the petitioner can have no grievance against the steps taken by the Bank. 5. Writ petition fails and is dismissed. I also record the submission of the standing counsel for the Bank that once amount is realised by sale of the principal debtors property, if WPC 8806/08 :3 : any further amount is found to be due towards the liability, it will be open to the petitioner to pay the said amount and avoid sale of his mortgaged properties. It is also stated that such payment will have to be made before 7/4/2008. ANTONY DOMINIC,JUDGE. Rp