CIVIL WRIT PETITION NO.2328 OF 2010 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MAY 19 ,2011 Krishan Kumar .....Petitioner VERSUS State Bank of India, Mumbai and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. S. P. Singh, Advocate for Mr. Amit Rawal, Advocate, for the petitioner. Mr. Nitin Kumar, Advocate, for respondent Nos.1 to 3. Mr. Harkeerat Singh, Advocate, for respondent No.4. **** RANJIT SINGH, J. The petitioner has approached this Court through the present writ petition, making allegation against the Bank as well as respondent No.4 i.e. M/s Amritsari Cloth House, Ludhiana, for causing wrongful loss to him. Respondent No.4 had obtained a credit CIVIL WRIT PETITION NO.2328 OF 2010 :{ 2 }: limit for a sum of `15,000/- in the year 1984, for which the petitioner stood as guarantor. Subsequently, in the year 1990, respondent No.4 approached the Bank for increasing the cash credit limit initially to `one lac and then to `1.5 lacs. This was sanctioned by the Bank. Respondent No.4 became irregular in discharging the liability. As per the petitioner, this was due to deliberate act on the part of respondent No.4. The Bank filed a suit for recovery against respondent No.4 and the petitioner. They were jointly and severally held liable for a sum of `2,33,727-06. This suit was decreed on 18.5.2001. The Bank also filed an application for passing a final decree during April 2003. Respondent No.4 then filed a suit for permanent injunction against the respondent Bank and for non- recovery of the amount due from him forcibly. During this time, the Bank issued notice under Section 13(2) of the Securitization of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, “the Act”). Subsequently, notice under Section 13(4) of the Act was issued on 12.11.2005. The notice regarding possession was also affixed for taking symbolic possession. The petitioner filed civil writ petition before this Court and this Court granted him status-quo on 2.12.2005. Subsequently, this writ petition was disposed of, giving liberty to the petitioner to approach the Debt Recovery Tribunal. The petitioner accordingly filed an application in the year 2006 before the Debt Recovery Tribunal. In the meantime, the petitioner learnt that respondent No.4 has again defaulted and on account thereof, his action has been declared as `non-performing asset'. Again a notice has been issued under Section 13(4) of the Act on 27.3.2009. The CIVIL WRIT PETITION NO.2328 OF 2010 :{ 3 }: petitioner also learnt that the property mortgaged by respondent No.4 with the Bank has not been put to any realisation and Bank has approached to take action against the property of petitioner- guarantor. The respondent-Bank has also filed an application before Debt Recovery Tribunal. Respondent No.4 has also approached this Court through Civil Writ Petition No.5579 of 2009, where the accounts have been settled. Primarily the Bank ought to proceed against respondent No.4. Counsel for respondent No.4 is present and pleads that respondent No.4 is ready to discharge liability. Even some criminal prosecution has been launched by respondent No.4 against the Bank. The petitioner pleads that the Bank should first press for realisation of loan amount from respondent No.4 and without its realisation, it should not proceed against the petitioner. It would be appropriate for the petitioner to press for stay from Debt Recovery Tribunal. Till the order is passed by Debt Recovery Tribunal, the Bank shall not proceed further against the petitioner to recover the loan amount from him. The Bank would, however, be at liberty to proceed against respondent No.4 in accordance with law. At this stage, counsel for the Bank placed reliance on Industrial Investment Bank of India Ltd. Vs. Biswanath Jhunjhunwala, 2010 (1) R.C.R. (Civil) 11 and United Bank of India Vs. Satyawati Tondon and others, 2010 (3) R.C.R. (Civil) 963. No doubt, as per the legal rights available to the Bank, it can CIVIL WRIT PETITION NO.2328 OF 2010 :{ 4 }: simultaneously proceed against the guarantor and borrower as well but equity in the present case demands that the guarantee, which was given by the petitioner for a sum of `15,000/- in the year 1984, should not be put to so much of burden, responsibility for which primarily is that of respondent No.4. The writ petition is according disposed of. May 19,2011 (RANJIT SINGH ) khurmi JUDGE