The court reaffirmed that the liability of a guarantor is equivalent to that of the principal debtor, thus allowing actions against the guarantor without first proceeding against the debtor.

JUDGMENT

The petitioner was one of the sureties for the loan availed by the 7^th respondent from the 4^th respondent. The petitioner is before this Court being aggrieved by the fact that the 4^th respondent-Society is proceeding against the petitioner without taking any steps against the 7^th respondent. It is also the contention of the petitioner that if at all recovery can be effected from the salary of the petitioner, the same will be subject to the limits under Section 60 of the Code of Civil Procedur, 1908. The petitioner further contends on the strength of the judgment of this Court inJames Varghese V. State of Kerala and Others ; 2012 (4) KHC 251 and the judgment of the Supreme Court in Pawan Kumar Jain V. Pradeshiya Industrial and Investment Corporation of U.P.Ltd and Others ; (2004) 6 SCC 758, that the Society could not have proceeded against the petitioner to the exclusion of the 7^th respondent-principal debtor. It is submitted that, in James Varghese (supra), this Court had observed that, there cannot be an unfair advantage to the principal debtor by the Society not proceeding against the principal debtor and proceeding only against the guarantor. It is submitted that, in Pawan Kumar Jain (supra), the Supreme Court has taken the view that proceedings cannot be initiated against the property of the guarantor unless the property of the principal debtor is first sold out.

2. Learned counsel appearing for the 4^th respondent-Society submits that the first point taken by the petitioner is covered against her by the judgment of this Court in Sasidharan Nair V. Vs. Trivandrum Cooperative Urban and Others 2009 (2) KLT 280. It is submitted that, this Court in the aforesaid judgment has taken the view that where proceedings are initiated in terms of the provisions contained in Section 37 of the Kerala Co-operative Societies Act , 1969 (hereinafter referred to as ‘the KCS Act’), the limits of attachment or recovery with reference to the provisions of Section 60 CPC are not applicable. It is submitted that the judgment of the Supreme Court inPawan Kumar Jain (supra) was on an appreciation of the provisions of the U.P. Public Moneys (Recovery of Dues) Act, 1972 and on the facts of that case and the judgment cannot be said to be laying down any absolute principle of law, which has to be followed by this Court while deciding the above writ petition. It is submitted that the other judgment relied on by the learned counsel appearing for the petitioner, which isJames Varghese (supra) categorically holds that the liability of the guarantor is co-extensive with that of the principal debtor. On facts, it is submitted that the 4^th respondent-Society has initiated steps against the 7^th respondent also.

3. Having heard the learned counsel appearing for the petitioner and the learned counsel appearing for the 4^th respondent -Society, I am of the view that the learned counsel appearing for the 4^th respondent -Society is right in contending that the petitioner cannot be heard to contend that the limits of attachment/recovery in terms of the provisions contained in Section 60 of CPC are applicable when proceedings are initiated against the petitioner under Section 37 of the KCS Act. The very same question was considered by this Court in Sasidharan Nair (supra), where this Court, following an earlier judgment of this Court inTVM. Coop. A&R.D Bank Ltd V. State of Kerala; ILR 2004 (3) Ker. 282 held as follows:-

‘’6.That apart, what is authorized under Section 37 (1) is the competence of the employer of a debtor to deduct from the salary or wages payable to the debtor, such amounts which may be required to be deducted on the basis of an agreement that may be entered into by a society which gives credit in favour o