H P JALAJAKSHI Vs. KARNATAKA BANK

JUDGEMENT

(1.) I have heard the learned Advocate on both sides. The learned Counsel who represents the Bank is right when he points out that in law, the institution does have the legal right to recover the decretal amount not only from the Principal-Debtor but, to an equal extent from the surety. The only submission that is tenable on behalf of the petitioner who is the applicant before me is that where the amount is irrecoverable from the Principal-Debtor or where the mode of recovery is so very weak, or so abnormally long-winded, that a Court would consider it almost on par with irre-coverability, that the Bank could then seek to recover the amount from the surety. What is also pointed out to me on behalf of the applicant who is a School Teacher is that if the corresponding recovery is simultaneously made from her salary, that there is no conceivable means whereby she would be able to get that amount reimbursed by that Principal-Debtor without filing a suit and if this is the only course of action, according to the current time-frame of the Courts it would probably be her great grand children who will recover the amount. There is some equitable justification in the plea put forwarded before me that while the surety cannot get away from the legal liability that she may perhaps be justified in pointing out that where the amount is being recovered from the Principal-Debtor, that only if that avenue fails, that the enforcement should be against her.

(2.) I need to also balance the position by pointing out that the Bank's learned Counsel has adverted to the time factor which is also of some consequence. He has pointed out in his reply, that would take 41 months to recover the decretal amount and that the Bank has sought to simultaneously recover the amount also from the surety in order to reduce the time factor. This is virtually a border line case and normally, I would have perhaps upheld the Bank's objection except for the fact that the decree itself was passed in 1992, that there has been considerable amount of delay on the part of the Bank itself and under these circumstances, I do not see why the consequences should be visited on the surety. Also, in the light of this last factor, it would be desirable for the Bank to ensure that it confines the recovery to the original decretal amount without interest, because the loss of time thereafter should not work to the prejudice of the School Teacher even if they have not repaid the loan.

(3.) THE only modification to the order passed by the trial Court which is permissible because, this Court needs to balance the equities even as far as the institution is concerned, is that the order of recovery vis-a-vis the present applicant-petitioner shall not be given effect to as long as the Principal-Debtor regularly pays up the instalments. If these instalments become irrecoverable for any reason, then it shall be open to the Bank to proceed on the basis of the present order vis-a-vis the surety only for the balance. With these modifications, the Civil Revision Petition which succeeds to stand is disposed of. The copy of this order to be furnished to the learned Advocate forthwith. No order as to costs. Order accordingly.