Sreejesh A. Nair vs The Kerala State Financial ...
2022 Latest Caselaw 1698 Ker

WP(C) NO. 3021 OF 2022         1




             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
               THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 16TH DAY OF FEBRUARY 2022 / 27TH MAGHA, 1943
                         WP(C) NO. 3021 OF 2022
PETITIONER:
         SREEJESH A. NAIR,
         AGED 38 YEARS
         S/O.T.V. AJAYAKUMAR, 'SHYAMNIVAS'
         KODUNGANOOR P.O., VATTIYOORKAVU P.O.,
         THIRUVANANTHAPURAM 695 013.
          BY ADVS.
          SHABU SREEDHARAN
          JINSON OUSEPH
          CHITRA VIJAYAN
          SHYAM KUMAR M.P


RESPONDENTS:
    1     THE KERALA STATE FINANCIAL ENTERPRISES LTD.
          (KSFE),
          REPRESENTED BY ITS MANAGING DIRECTOR, BHADRATHA,
          MUSEUM ROAD, P.B. NO. 510 THRISSUR 680 020.
    2     THE BRANCH MANAGER,
          KSFE VAZHUTHACAUD BRANCH, CENTRE PLAZA BUILDING,
          2ND FLOOR, VAZHUTHACAUD P.O.,
          THIRUVANANTHAPURAM 695 014.
    3     THE BRANCH MANAGER,
          KSFE SASTHAMANGALAM BRANCH, 2ND FLOOR,
          SOWPARNIKA TOWER, OPP. RKDNSS HSS SASTHAMANGALAM,
          THIRUVANANTHAPURAM 695 010.
    4     THE REGIONAL DIRECTOR,
          INDIAN COUNCIL FOR CULTURAL RELATIONS (ICCR), C2,
          STREET C, ELANKOM GARDENS, VELLAYAMBALAM,
          THIRUVANANTHAPURAM 695 010.
          BY ADV K.A.SALIL NARAYANAN, SC, R1 TO R3
      THIS     WRIT      PETITION    (CIVIL)     HAVING    COME    UP    FOR
ADMISSION     ON    16.02.2022,       THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C) NO. 3021 OF 2022           2




                                 JUDGMENT

Dated this the 16th day of February, 2022

The petitioner, who is working as LD Clerk under the

Indian Council for Cultural Relations (ICCR), has approached

this Court seeking to command respondents 2 and 3 to proceed

against the Principal Debtors Sri.Karthikeshan C. and

Sri.Vijayakumar R. for recovering the outstanding balances in

the loan accounts covered by Exts.P5 and P6 letters.

2. The petitioner submits that he is a B.A Graduate

having a family consisting of his mother, wife and two children.

He is getting a salary of `41,719/- per month. One

Karthikeshan C., who was the superior officer of the petitioner,

obtained a loan from the 3 rd respondent. Under compulsion, the

petitioner signed blank forms and stood as surety to the said

Karthikeshan C. Subsequently, a case was registered against

the said Karthikeshan C. for taking loan from KSFE using forged

documents. One Mr.Vijayakumar R. was also an accused in the

said crime.

3. The petitioner states that he has not availed any

amount from respondents 2 and 3. The petitioner is shown as a

surety for the said loans. The petitioner has not in fact stood as

a surety. However, the petitioner was told by the 4 th respondent

that 2nd and 3rd respondents issued letters to the 4th respondent

requesting to effect recovery of `20,000/- per month from the

petitioner's salary and remit it to 2nd and 3rd respondents, till

liability to the tune of `5 lakhs and `1,10,000/- due from the

Principals are fully discharged. The petitioner is aggrieved by the

said action.

4. The petitioner would state that he has not availed any

loan from the respondents. The petitioner is only a surety for the

loan advanced to Mr.Karthikeshan C. The petitioner is finding it

very difficult to meet all expenses of his family including huge

EMIs of his own housing loan, educational expenses of children

and treatment expenses in respect of his aged mother. The

respondents are proceeding to recover amount from the salary

of the petitioner without taking steps, whatsoever to realise the

outstanding from Karthikeshan C. and Vijayakumar R. This is

highly illegal and arbitrary. Unless the respondents are directed

to effect recovery from the Principals before taking any steps to

recover it from the petitioner's salary, the petitioner will be put to

untold hardship and loss, contended the learned counsel for the

petitioner.

5. The learned Standing Counsel for the respondents

filed a statement and contested the writ petition. The learned

Standing Counsel pointed out that the petitioner has admitted

that he has stood as a surety for the loan/financial facility availed

by Sri.Karthikeshan C. The petitioner therefore cannot wriggle

out of the liability contending that the creditor should first seek to

recover the amount from the principal debtor.

6. The learned Standing Counsel pointed out that the

liability of the surety is co-extensive with that of the Principal

Debtor in view of Section 12 of the Indian Contract Act, 1872.

The petitioner had undertaken to discharge the liability of

Sri.Karthikeshan C., where the loan amount is `5 lakhs. The

petitioner has also stood as a surety to the prized money availed

by one Sri.Vijayakumar R. The respondents have requested the

employer of Sri. Karthikeshan C. to recover the terminal benefits

and other amounts payable to Sri.Karthikeshan C. so as to

secure the interest of the KSFE. In the circumstances, the writ

petition is without any merit, contended the learned Standing

Counsel.

6. I have heard the learned counsel for the petitioner

and the learned Standing Counsel representing the

respondents.

7. The case of the petitioner is that he was forced to

stand as a surety to Mr. Karthikeshan C., who was his superior

officer. Blank papers were got signed by the petitioner. Further

case of the petitioner is that the respondents are proceeding

against the petitioner without making any attempt to realise the

debt amount from the principal debtor.

8. As long as the signature of the petitioner is admitted

in the Guarantee Forms, the petitioner cannot be heard to

contend that he is not aware of the transaction and he is forced

to be a surety. If the petitioner alleges fraud or manipulation of

documents, the petitioner has to approach appropriate Courts of

law for remedying his grievances.

9. As far as the allegation of the petitioner that the

respondents are not taking any steps to realise the amount from

the Principal Debtor, a Statement filed by the learned Standing

Counsel would show that they have received information that

Sri.Karthikeshan C. stands terminated from service and the

respondents have requested the employer of Sri.Karthikeshan

C. to withhold terminal benefits and other amounts payable to

Sri.Karthikeshan C.

10. The respondents have already proceeded against

the Principal Debtor. In view of Section 12 of the Indian

Contract Act, 1872, the liability of the petitioner is co-extensive

with that of the Principal Debtors. Therefore, respondents 1 to

3 will be justified in proceeding to recover the amount from the

salary of the petitioner.

The writ petition is therefore without any merit and it is

dismissed.

Sd/-

N.NAGARESH JUDGE hmh

APPENDIX OF WP(C) 3021/2022

PETITIONER EXHIBITS

Exhibit P1 THE TRUE COPY OF THE SALARY SLIP OF THE PETITIONER DATED NIL FOR THE MONTH OF DECEMBER 2021.

Exhibit P2 TRUE COPY OF THE LOCAL CERTIFICATE ISSUED BY THE INDIAN BANK DATED 20.11.2021.

Exhibit P3 TRUE COPY OF THE FIR IN CRIME NO. 738 OF 2020 OF MUSEUM POLICE STATION, THIRUVANANTHAPURAM DATED 1.10.2020.

Exhibit P4 TRUE COPY OF THE COMPLAINT PREFERRED BY THE 3RD RESPONDENT DATED 29.9.2020.

Exhibit P5 THE TRUE COPY OF THE LETTER DATED 18.08.2021 ISSUED BY THE 2ND RESPONDENT. Exhibit P6 THE TRUE COPY OF THE LETTER DATED 22.10.2021 ISSUED BY THE 3RD RESPONDENT. Exhibit P7 THE TRUE COPY OF THE SCREEN SHOT OF EMAIL COMMUNICATION DATED 28.12.2021 SENT BY THE PETITIONER TO THE 4TH RESPONDENT.

RESPONDENT'S EXHIBITS ANNEXURE R1 A TRUE COPY OF THE SURETY APPLICATION FORM