IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 22ND NOVEMBER 2010 / 1ST AGRAHAYANA 1932 WP(C).No. 34400 of 2010(Y) -------------------------- PETITIONER: ------------------- G.HARIDAS, AGED 47, S/O.T.K.GOVINDAN NAIR, RESIDING AT "ASWATHY", PAZHAVEEDU P.O., ALAPPUZHA -9. BY ADVS. SMT.T.S.MAYA (THIYADIL) SMT.PRINCY XAVIER RESPONDENTS: ----------------------- 1. THE REGIONAL MANAGER, REGIONAL OFFICE, KSFE, KOTTAYAM, PIN-686001. 2. THE BRANCH MANAGER, KSFE, ALAPPUZHA II, IRION BRIDGE P.O., ALAPPUZHA P.O., PIN-688001. R2 BY ADVS. SRI.M.SASINDRAN, SC, K.S.F.E., LTD. SRI.M.SASINDRAN, SC, K.S.F.E., LTD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 34400 of 2010(Y) --------------------------------------- APPENDIX ----------------- PETITIONER'S EXHIBITS ----------------------------------- EXT.P1. COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 9.11.2010 EXT.P2. COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT TOMANAGER SBT, PAZHAVEEDU BRANCH DATED 9.11.2010 RESPONDENTS EXHIBITS : NIL -------------------------------------- P.A. TO JUDGE / TRUE COPY / VK ANTONY DOMINIC, J. ================ W.P.(C) NO. 34400 OF 2010 ===================== Dated this the 22nd day of November, 2010 J U D G M E N T The prayer sought in the writ petition is to direct the 2nd respondent not to invoke the bank guarantee dated 22/10/07 for Rs.5 lakhs. According to the petitioner, he is a subscriber of four kuries conducted by the 2nd respondent, which are all prized kuries. It is stated that as part of security, a Bank guarantee for Rs.5 lakhs furnished by a guarantor has been submitted. It is stated that the Bank guarantee is valid till 21/3/2011. According to the petitioner, although he was prompt in repayment, default has been committed for reasons which were beyond his control. It is stated that on account of the above, the 2nd respondent is taking steps to encash bank guarantee and that despite a representation made for giving one months time to pay the amount due, 2nd respondent is proceeding with the invocation of the bank guarantee. It is complaining of the above, the writ petition is filed. 2. Counter affidavit has been filed by the 2nd respondent. According to the 2nd respondent, petitioner is a subscriber of five WPC No. 34400/10 :2 : chitties and that in all the chitties, default has been committed. It is stated that, on an earlier occasion, petitioner had approached the 1st respondent and that 1st respondent had given the petitioner facility to make payment, which was not complied with. It is stated that despite the above, representation is made, and in view of the continuing default, they are not in a position to defer further coercive proceedings against the petitioner. 3. Admittedly, petitioner is a defaulter and the bank guarantee is given in security of repayment of the dues. In such circumstances, if the respondents are proceeding to invoke the bank guarantee, this Court cannot prevent the respondents from proceeding further with the matter. Therefore, legally respondents cannot be faulted for what it has done. 4. Be that as it may, having regard to the circumstances pointed out, it is directed that out of Rs.5,25,000 due in respect of the kury in relation to which the Bank guarantee has been invoked (Chitty No.53/07 with Chittal No.6), if dues are paid by the petitioner in two equal instalments, the first on or before 30/11/2010 and the second on or before 15/12/2010, the Bank WPC No. 34400/10 :3 : guarantee shall not be invoked by the respondents. It is made clear that if any default is committed, the respondents will be free to take any action as it deems fit. ANTONY DOMINIC, JUDGE Rp