ARUN THAMAN Vs. SARASWAT CO OPERATIVE BANK LTD

JUDGEMENT

(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.) 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.