Karnataka High Court
Mr. Abbubakar vs M/S Sinchana Chits Pvt Ltd on 14 July, 2022
Bench: Sachin Shankar Magadum
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 20590 OF 2021(GM-CPC)
BETWEEN:
MR. ABBUBAKAR
AGED ABOUT 52 YEARS
S/O UMARABBA
P.D.O. GURUPURA GRAMA
PANCHAYATH, MANGALORE
...PETITIONER
(BY SMT.KUMARI.M, ADVOCATE FOR
SRI.DR.S.ARUMUGHAM, ADVOCATE)
AND:
1. M/S SINCHANA CHITS PVT LTD
NO.4-195-14, 1ST FLOOR
PRESTIGE TOWERS, NEAR BUS STAND
MOODBIDRI-574227
BRANCH AT NO.5/6K, 2ND FLOOR
VIVA COMPLEX MAIN ROAD, BELTHANGADY-574214.
REP BY ITS MANAGER.
2. MR NARAYANA POOJARY
AGED ABOUT 45 YEARS
S/O PADMAPPA POOJARY
R/O DAASAKODI HOUSE
AMTOOR VILLAGE, KARINAGA POST
BANTWALA, D.K-574211.
2
3. MRS HARINAKSHI
AGED ABOUT 40 YEARS
W/O NARAYANAPOOJARY
R/O DAASAKODI HOUSE
AMTOOR VILLAGE, KARINAGA POST
BANTWALA D.K.-574211.
...RESPONDENTS
(BY SMT.RAJA RAJESHWARI N, ADVOCATE FOR R1;
R2 & R3 ARE SERVED & UNREPRESENTED)
THIS PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 30.08.2021 PASSED IN EX.C.234/2019
BY THE II ADDL. SENIOR CIVIL JUDGE AND CJM AT
ANNEXURE-D, INSOFAR AS ISSUANCE OF SALARY
ATTACHMENT WARRANT OF PETITIONER.
THIS PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 06.07.2022, COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
The captioned writ petition is filed by the
judgment debtor No.3 questioning the order dated
30.8.2021 passed by the Executing Court in issuing
salary attachment warrant of petitioner herein.
2. The learned counsel for the petitioner
would submit to this Court that respondent No.2 who
is the principal borrower owns property worth Rs.10
crores and apart from that, the movables owned by
respondent No.3 is worth Rs.10 lakhs. Therefore, she
would contend that the Garnishee warrant attaching
the petitioner's salary is liable to be set aside by this
Court. She would also point out that the attachment
of the salary of the petitioner is excessive and
therefore, the executing Court has exceeded its
jurisdiction. The grievance of the petitioner before
this Court is that more than 1/3rd of petitioner's salary
is sought to be attached and therefore, she would
contend that the attachment is in violation of Article
14 of the Constitution of India.
3. The learned counsel for the petitioner has
further argued and contended that the Deputy
Registrar has no jurisdiction to issue a recovery
certificate and therefore, she claims that the recovery
certificate being invalid the execution proceedings is
not maintainable at all.
4. The said argument canvassed by the
learned counsel for the judgment debtor is equally
repelled by the learned counsel appearing for
respondent No.1-decree holder. In support of her
contention, she has placed reliance on the judgment
rendered by the Apex Court in the case of State Bank
of India .vs. M/s. Indexport Registered and
others1. Placing reliance on the said judgment, she
would contend that the decree holder cannot be forced
to first exhaust remedy by way of execution of
mortgage decree alone and then to proceed against
the guarantor.
5. Heard the learned counsel for the petitioner
and learned counsel appearing for respondent-decree
AIR 1992 SC 1740
holder. Perused the materials and also the order
under challenge.
6. The present writ petition is filed on the
basis of an award passed by the Deputy Registrar in
dispute No.DRP/CFS/111/2017-18. The said award is
not at all questioned by the judgment debtors. A
recovery certificate is issued by the authority. If the
award has attained finality, the decree holder has
every right to proceed against the judgment debtor.
On a bare reading of the provisions of Contract Act,
more particularly Section 128 of Indian Contract Act,
1872, it is quite clear that the liability of surety is co-
extensive with that of the principal debtor. The
judgment cited by the learned counsel appearing for
the respondent is squarely applicable to the present
case on hand. This principle is reiterated by the Apex
Court in the case of Lalit Kumar Jain vs. Union of
India and others2. In Ram Kishun and others .vs.
State of U.P. and others3, the Apex Court has held
that it is prerogative of the creditor alone, whether he
could move against the principal debtor first or the
surety to realise the loan amount. The Apex Court was
of the view that the surety has no right to restrain the
execution of the decree against him until the creditor
has exhausted his remedy against the principal
debtor.
7. In view of the dictum laid down by the
Apex Court, if the surety does not have the right to
dictate terms to the creditor as to how he should
make recovery, the present petitioner who is the
guarantor cannot escape his liability guarantor for the
debt taken by the principal debtor. Section 128 of the
Indian Contract Act, 1872, would squarely apply to
the case on hand.
(2021) 9 SCC 321
AIR 2021 SC 2288
8. For the reasons stated supra, I proceed to
pass the following:
ORDER
The writ petition is dismissed.
Sd/-
JUDGE
*alb/-
