Arun Thaman vs The Saraswat Co-Operative Bank ...
2011 Latest Caselaw 355 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Date of decision: 20th January, 2011.

+                                  W.P.(C) 359/2011

%        ARUN THAMAN                                           ..... Petitioner
                            Through:      Ms. Ranjana Roy Gawai & Mr.
                                          Abhishek K. Rao, Advocates.

                                   Versus

         THE SARASWAT CO-OPERATIVE
         BANK LTD. & ORS.                                   ..... Respondents
                      Through: None.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                    No

2.       To be referred to the reporter or not?             No

3.       Whether the judgment should be reported            No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner, a Whole Time Director of the respondent No.3

Company, had furnished his personal guarantee to the respondent No.1 Bank

in consideration of the financial assistance granted by the respondent No.1

Bank to the respondent No.3 Company. It is the case of the petitioner that

he was a Director in a professional capacity and the respondent No.4 being

the promoter Director of the respondent No.3 Company has in consideration

of personal guarantee given by the petitioner furnished a counter guarantee

to the petitioner. The petitioner on ceasing to be the Whole Time Director

of the respondent No.3 Company, in March, 2010 applied to the respondent

No.1 Bank to release his personal guarantee. Upon the respondent No.1

Bank not doing so inspite of legal notice, this petition has been filed seeking

a direction to the respondent No.1 Bank to release the personal guarantee of

the petitioner and to replace the same with the personal guarantee of a new

or continuing Director of the respondent No.3 Company.

2. A writ of mandamus as sought would be issued only upon showing

that an authority or the State while owing a duty, has failed to perform the

same. On a reading of the entire petition, no such duty owed by the

respondent No.1 Bank to the petitioner to release the personal guarantee of

the petitioner on the asking of the petitioner and without the loan / financial

assistance in consideration whereof the said personal guarantee was

furnished being repaid. The petitioner thus is not found entitled to the writ

of mandamus claimed.

3. Upon the same being put to the counsel for the petitioner, he states

that the petitioner is not even in possession of the documents executed, even

of the personal guarantee furnished by him. It is argued that notice of the

petition be issued so that the matter can be elucidated.

4. It was for the petitioner to make enquiries and to collect documents

before approaching this Court. It is not even the plea of the petitioner that

he had given a personal guarantee on the condition that the same would be

released on his asking. It is even otherwise highly unlikely that any such

term would have been accepted by the respondent No.1 Bank Thus the

petitioner now cannot seek issuance of notice to the respondent No.1 Bank

for initiating a rowing and fishing enquiry into the matter.

5. The counsel for the petitioner has referred to U.P. State Cooperative

Land Development Bank Ltd. Vs. Chandra Bhan Dubey (1999) 1 SCC 741

where in para 22 reference is made to the earlier judgment in Rohtas

Industries Ltd. Vs. Rohtas Industries Staff Union (1976) 2 SCC 82 laying

down that the mentor of law is justice and a retrospect and portentous

prospect, the writ power has, by and large, been the people's sentinel on the

qui vive and to cut back on or liquidate that power may cast a peril to human

rights. On the basis thereof, it is contended that justice demands that the

Bank should substitute the personal guarantee of the petitioner with the

personal guarantee of some other person.

6. I am afraid justice has to be not vis-à-vis the petitioner only but in the

entirety of the facts of the matter. The petitioner having made the

respondent No.1 Bank extend financial assistance to the respondent No.3

Company on the basis of his personal guarantee, cannot now before the

loans advanced by the respondent No.1 Bank are repaid, seek such direction.

The petitioner while giving the personal guarantee was satisfied with the

counter guarantee in his favour by the respondent No.4. The petitioner

having chosen his course of action, now even if entitled to any relief, is

entitled thereto against the respondent No.4 in terms of the counter

guarantee obtained by him and not against the respondent No.1 Bank.

7. The counsel for the petitioner at this stage, states that the respondent

No.1 Bank itself in its communication dated 29th November, 2010 to the

petitioner has stated that it was considering the request of the petitioner. He

seeks a direction to the respondent No.1 Bank to take a decision thereon.

8. When there is no right in favour of the petitioner or duty owed by the

respondent No.1 to the petitioner, it would not be appropriate for this Court

to issue such direction even to the respondent No.1 Bank.

There is no merit in this petition, the same is dismissed in limine.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 20th JANUARY, 2011 'gsr'