The bank has the authority to proceed against the guarantor, and the Tribunal has discretionary power to direct the deposit under the SARFAESI Act.

K. Kalyanasundaram, J.

1. This writ petition is filed, praying for a writ of Certiorari, to call for the records comprised, in I.A.No.1103/2014 in AIR(SA) No.452/2009, dated 16.12.2013, on the file of the Debts Recovery Appellate Tribunal, Chennai, and to quash the same.

2. Brief facts of the case are that the petitioner is the guarantor for the loan availed by one Rengarajan and his wife Rathika Rengarajan. Due to the de-fault in repayment of the loan, the first respondent bank, invoking the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the 'SARFAESI Act' in short), had issued a notice, for sale of the property of the petitioner. The said notice was challenged by the petitioner, before the Debts Recovery Tribunal-I, Chennai, in S.A.No.221 of 2008. The Tribunal, after considering the case of the petitioner and the first respondent, dismissed the appeal, by order dated 19.6.2009. Aggrieved by the said order, the petitioner had filed an appeal, before the Debts Recovery Appellate Tribunal, Chennai. He has also filed an application, in I.A.No.1103 of 2009, under Section 19(25) of the Recovery of Debts Due to Banks and Financial Institutions Act, read with Section 18(2) of the SARFAESI Act, seeking waiver of the deposit. The Debts Recovery Appellate Tribunal, directed the petitioner to deposit a sum of Rs.18,50,625.00 i.e. 50% of the claim made, in the notice issued under Section 13(2) of the SARFAESI Act, on or before 31.1.2014. Challenging the said order, the present writ petition is filed.

3. Heard Mr. M. Kulandaivelu, learned counsel, appearing on behalf of the petitioner and Mr. Rajendra Raghavan, appearing on behalf of the first respondent.

4. The learned counsel for the petitioner submitted that the petitioner is only a guarantor and the first respondent bank, instead of taking proceedings against the principal borrower, had initiated proceedings against the petitioner, which is not sustainable in law. The learned counsel further submitted that the first respondent bank had already sold a property of the petitioner and appropriated the amount, but the Appellate Tribunal, without considering the said fact, passed the order, in a routine and mechanical manner, directing the petitioner to deposit 50% of the amount, claimed in the notice issued under Section 13(2) of the SARFAESI Act. On those grounds, the learned counsel sought to set aside the impugned order.

5. With regard to the contention that the petitioner is only a guarantor and the first respondent bank, instead of taking proceedings against the principal borrower, proceeded against the petitioner is concerned, it is settled law that the bank has an authority to proceed either against the principle borrower or the guarantor. When there is no legal bar, the petitioner cannot have any grievance against the bank, for proceeding against him instead of the principal borrower.

6. As far as the contention of the learned counsel for the petitioner that the first respondent bank had already sold one of the properties of the petitioner and misappropriated the amount, but the same has not been taken into consideration by the Debts Recovery Appellate Tribunal is concerned, in the affidavit, filed in support of the waiver application, the petitioner had only contended that the secured creditor is trying to misuse the provisions of the SARFAESI Act, without following the principles of natural justice, but nowhere it is stated that the property of the petitioner had been sold by the first respondent bank and sale proceeds have been misappropriated by the bank. Even in the writ petition also, the petitioner did not furnish any particular about the sale of his property and appropriation of the sale proceeds, by the first respondent bank. Therefore, the said contention, in our view, does not merit consideration.

7. Further, it is seen from the records that the first respondent bank had