IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 13TH AUGUST 2008 / 22ND SRAVANA 1930 WP(C).No. 36028 of 2007(L) ---------------------------------------- (I.A.NO.1063/2007 AND 3040/2007 IN O.S.122/2007 OF 1 ADDL.SUB COURT, THIRUVANANTHAPRAM) PETITIONERS: ---------------------- 1. HYMAVATHESWARY AMMA, T.C.10/1369-1, VATTIYOORKAVU, THIRUVANANTHAPURAM. 2. K. MOHANACHANDRAN NAIR, T.C.10/1369-1, VATTIYOORKAVU,THIRUVANANTHAPURAM. 3. PREMALATHA P.M., T.C.10/1369-1, VATTIYOORKAVU,THIRUVANANTHAPURAM. BY ADV. SMT.A.K.PREETHA SRI.M.R. RAJESH RESPONDENTS: ------------------------- 1. B. RAJASEKHARAN NAIR, GOVERNMENT CONTRACTOR, DEVI BHAVAN, PALLICHAL P.O. NEMOM, THIRUVANANTHAPURAM-20. 2. DEVI R.NAIR ALIAS DEVAKI, W/O. B.RAJASEKHARAN NAIR, DEVI BHAVAN,PALLICHAL PO NEMOM, THIRUVANANTHAPURAM. 3. M/S. PUNJAB AND SIND BANK, M.G. ROAD, THIRUVANANTHAPURAM. 4. THE TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM,REPRESENTED BY THE COMMISSIONER. 5. THE EXECUTIVE ENGINEER, P.W.D. ROADS DIVISION, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. Kss ..2/- ...2.... WPC.NO.36028/2007 L 6. THE KERALA STATE TOURISM DEVELOPMENT CORPORATION, THIRUVANANTHAPURAM REPRESENTED BY ITS MANAGING DIRECTOR. * 7. K. HEMACHANDRAN NAIR, T.C.10/1369-1, VATTIYOORKAVU,THIRUVANANTHAPURAM. (D E L E T E D). *R7 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER VIDE ORDER DTD. 10/04/08 IN I.A.5333/08. BY GOVERNMENT PLEADER - R5 ADV. SRI. D. SAJEEV FOR R1 & R2 SRI. NAGARAJ NARAYANAN FOR R4 SRI.P.A.AHAMED,SC FOR KTDC LTD. FOR R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.36028/2007 L APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN THE O.S.122/2007 ON THE FILES OF COURT OF I ADDL.SUB JUDGE, THIRUVANANTHAPRAM. EXT.P2: COPY OF I.A.1063/2007 IN O.S.122/2007 ON THE FILES OF COURT OF I ADDL.SUB JUDGE, THIRUVANANTHAPRAM. EXT.P3: COPY OF THE ORDER PASSED BY THE COURT OF 1 ADDL.SUB JUDGE, THIRUVANANTHAPRAM IN I.A.1063/2007 IN O.S.122/2007 DTD. 15/02/2007. EXT.P4: COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS 1 AND 2 IN O.S.122/2007. EXT.P5; COPY OF THE WRITTEN STATEMENT FILED BY THE 3RD RESPONDENT IN O.S.122/2007. EXT.P6: COPY OF I.A.3040/2007 IN O.S.122/2007 ON THE FILES OF COURT OF I ADDL.SUB JUDGE, THIRUVANANTHAPRAM. EXT.P7: COPY OF THE OBJECTION FILED BY THE 1ST RESPONDENT IN I.A.3040/2007 IN O.S.122/2007. EXT.P8: COPY OF THE COMMON ORDER DTD. 16/10/2007 IN I.A.1063/2007 AND 3040/2007 IN O.S.122/2007. EXT.P9: COPY OF THE LETTER ISSUED BY THE 4TH RESPONDENT TO THE 1ST PETITIONER DTD. 15/03/2007. EXT.P10: COPY OF THE LETTER DTD. 14/03/2007 ISSUED BY THE 6TH RESPONDENT TO THE 1ST PETITIONER. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C) NO. 36028 OF 2007 ------------------------------------------ Dated this the 13th day of August, 2008 JUDGMENT This petition is filed under Article 227of Constitution of India challenging Ext.P8 order passed by Sub Court, Thiruvananthapuram in I.A.1063 of 2007 and I.A.3040 of 2007 in O.S.122 of 2007. Petitioners are plaintiffs 1 to 3 and seventh respondent is the fourth plaintiff in the application. I.A.1063 of 2007 and I.A.3040 of 2007 were filed under Rule 5 of Order XXXVIII of Code of Civil Procedure for attachment before judgment. As per I.A.1060 of 2007, the amount due to first respondent from fourth respondent Travancore Devaswom Board and fifth respondent PWD was sought to be attached. As per I.A.3040 of 2007, the amount due to first respondent from the sixth respondent Kerala State Tourism Development Corporation as well as the amount due to the first respondent was sought to be attached. Learned Sub Judge, under Ext.P8 order, dismissed the applications holding that plaintiffs are claiming the decree for realization of the amount from first WP(C)36028/07 2 respondent contending that they paid the amount due from first respondent to third respondent Punjab and Sind Bank as guarantors to the loan transaction and even according to the plaintiffs the entire liability was not cleared and only part of the amount was paid and before clearing the entire debt plaintiffs are not entitled to claim the amount paid as provided under Section 140 of Indian Contract Act. 2. Learned counsel appearing for petitioners rightly pointed out that Section 140 of Indian Contract Act provide the right of the guarantor to realize the amount paid on behalf of the principle debtor, if the payment is made where a guaranteed debt has become due on default of the principal debtor to perform, a guaranteed duty has been taken place and the surety upon payment of performance of all that is liable for, if vested with all the rights which the creditor had against the principal debtor and therefore learned Sub Judge was not justified in holding that without clearing the entire debt plaintiffs are not entitled to claim back the amount. 3. Learned counsel also argued that as provided under Section 145 of Contract Act a surety is entitled to recover from the principal debtor whatever sum he has rightfully paid under WP(C)36028/07 3 the guarantee and even if the entire debt was not cleared, he is entitled to get a decree in respect of the portion of the debt cleared and therefore dismissal of the petitions are not sustainable. 4. The learned counsel appearing for first respondent argued that though plaintiffs claim that they have deposited Rs.10,00,000/- out of the liability due under the transaction, third respondent Bank did not admit the payment before the Debt Recovery Tribunal and decree passed in O.A.225 of 2004 dated 6.12.2007 does not reflect any such discharge and instead decree is granted for the entire amount and therefore plaintiffs are not entitled to seek the decree. 5. The question whether plaintiffs are entitled to the decree is ultimately to be decided in the suit. The learned Sub Judge was not justified in rejecting the claim for attachment on the ground that plaintiffs did not discharge the entire debt as even part payment could be claimed back. The learned counsel appearing for third respondent Bank admitted that Rs.10,00,000/- was paid by the plaintiffs for the liability due from the first defendant under the contract of guarantee. In such circumstances, learned Sub Judge should not have WP(C)36028/07 4 dismissed the applications. 6. Ext.P8 order is therefore quashed. I.A.1063 of 2007 and I.A.3040 of 2007 are therefore remanded to First Additional Sub Court, Thiruvananthapuram for fresh disposal in accordance with law. There would be a a conditional order of attachment to the extent of Rs.12,00,000/- on the amount due to the first defendant lying with respondents 4 to 6 till the disposal of I.A.1063 of 2007 and I.A.3040 of 2007 by the trial Court. Writ petition is disposed of as above. M. SASIDHARAN NAMBIAR, JUDGE Okb/-