The liability of the guarantor under Section 128 of the Contract Act is co-extensive to that of the loanee. The creditor may proceed against the guarantor without exhausting remedies against the principal debtor.

JUDGMENT :

B.S. Chauhan, C.J. - This writ petition has been filed for quashing the order dated 30.11.2007 (AnnEx. -5) passed in Application No. 18 of 2007 by the Debts Recovery Appellate Tribunal, Kolkata (hereinafter called the 'Appellate Tribunal') and for further direction that the recovery may be made from the properties belonging to the Opposite party No. 2, the loanee and not from the Petitioner's property, who is a guarantor.

2. The facts and circumstances giving rise to the case are that opposite party No. 2 had taken a loan from the opposite party No. 1, Bank of India in August, 1998 and the Petitioner stood guarantor for the same. As the loan taken by the opposite party No. 2 has not been re-paid, the bank initiated the proceeding u/s 13(1) of the Securitisation and Reconstruction of Financial Assets and Security Interest Act, 2002 (hereinafter called 'the Act 2002') for recovery of a sum of Rs. 10,83,779 as on 31.2.2005 and the said opposite party No. 2 was directed to make the payment within sixty days. A copy of the said notice was also served upon the Petitioner. The said opposite party No. 2 wanted to settle the matte with the bank. However, the proposal could not be materialized and therefore, further proceedings were taken up u/s 13(4) of the Act, 2002.

3. The opposite party bank vide advertisement dated 12.1.2007 invited auction bidders for sale of the properties belonging to the Petitioner i.e. guarantor and in pursuance of the same the said property has been sold in favour of the opposite party No. 3, Hitakar Mohapatra for a sum of Rs. 3,00,000 on 6.4.2007.

4. The Petitioner being aggrieved filed W.P.(C) No. 5070 of 2007 before this Court but the said Writ petition was dismissed relegating the Petitioner to file appeal u/s 17 of the Act before the Debts Recovery Tribunal (hereinafter called 'the Tribunal'). The Petitioner approached the Tribunal but could not find any favour from the Tribunal. Petitioner in fact insisted that the Tribunal should direct the Bank to settle the matter. The Tribunal rejected the s aid prayer vide its order dated 3.10.2006 observing that the Tribunal had No. such power. Petitioner preferred the time barred appeal before the Appellate Tribunal, u/s 18 of the Act, 2002. The Tribunal while entertaining the appeal condoned the delay of more than six months vide order dated 22.5.2007 (Annex-4) directed the Petitioner to show his bona fide and deposit a sum of Rs. 2,80,000 by 25.6.2007. The Petitioner made a deposit of Rs. 1,00,000 within the time stipulated by the Appellate Forum and made an application for extension of time to deposit the balance amount of Rs. 1,80,000. While seeking extension of time, he wanted to deposit a sum of Rs. 50,000 and a bank draft of the said amount was filed along with the application. The Tribunal rejected the said application vide 30.11.2007 and returned the bank draft to the Petitioner. Hence this petition.

5. Learned Counsel for the Petitioner has raised large number of issues particularly that the notice u/s 13(2) and 13(4) of the Act had never been served on the Petitioner as the address given by the bank on the said notice was not correct. In the facts and circumstances of the case the Appellate Forum could have extended time giving opportunity to the Petitioner to meet the requirement of pre-deposit condition. Hence the orders are liable to be quashed. So far as the grievance of non-service of notices is concerned, as subsequent to the said notice u/s 13(2) of the Act, 2002, the Petitioner had approached the writ court as well as the Tribunal and appellate forum and did not point any prejudice had caused to him, more so, notice u/s 13(4) and subsequently auction notice has been published in the newspaper 'Samaj' dated 12.1.2007 having wide circulation, we fail to understand how the Petitioner can raise the grievance that he had not been aware of the proceeding. The last part of the advertisement reads as under:-

This is also a notice to the borrower/g