R.Kallimuthu v. M/S Shriram City Union Finance
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 22.08.2019 Coram The Honourable Mrs.Justice R.HEMALATHA C.R.P.(NPD)No.3983 of 2013 and M.P.No.1 of 2013 R.Kalimuthu ... Petitioner Vs.
1.M/s.Shriram City Union Finance Ltd, Coimbatore Region, 141/2, First Floor, Perundurai Road, Opp. Sakthi Mahal Erode - 11 Rep. By its authorised signatory T.Gnanasekaran Assistant Manager 2.V.Chandrasekar 3.R.Ponnusamy 4.C.Shanthi ... Respondents This Civil Revision Petition has been filed under Article 227 of the Constitution of India to set aside the fair and decreetal orders dated 09.04.2013 passed in E.P.No.69 of 2012 in Arb. Cases No.330 of 2010 by the learned First Additional Subordinate Judge, Erode.
For Petitioner : Mr.P.Valliappan For Respondents : Mr.K.V.Ananthakrishnan for R1 No appearance for R2 to R4
O R D E R
The present civil revision petition has been filed against the orders dated 09.04.2013 passed in E.P.No.69 of 2012 in Arb. Case No.330 of 2010 by the learned First Additional Subordinate Judge, Erode.
2.The revision petitioner is the 2nd respondent/Judgment Debtor in E.P.No.69 of 2012 in Arbitration Case No.330 of 2010 on the file of the First Additional Subordinate Court, Erode. The first respondent/Decree Holder M/s.Shriram City Union Finance Ltd filed E.P.No.69 of 2012 under Order XXI Rule 11(2) of the Civil Procedure Code read with Section 36 of the Arbitration and Conciliation Act 1996 for attachment of the salary of the respondents 2 and 3 for realisation of the decree amount in Arbitration Case No.330 of 2010. The Judgment Debtor/Civil Revision Petitioner filed a counter in the Execution Petition contending that he did not stand as a guarantor for the loan obtained by the second respondent in the instant petition and that his signature is forged in the loan document. The learned First Additional Subordinate Judge, Erode, after analysing the evidence
on record, allowed the Execution Petition and attached the salary of the present civil revision petitioner to the tune of Rs.2,260/- per month. Aggrieved over the same, the present civil revision petition is filed.
3.Mr.P.Valliappan, learned counsel appearing for the civil revision petitioner contended that since the civil revision petitioner was not served with notice in the Arbitration proceedings and the signature of the civil revision petitioner was also forged in the loan agreement, he is not liable to pay the decreetal amount and the orders passed by the learned First Additional Subordinate Judge, Erode is liable to be set aside.
4.Per contra, Mr.K.V.Ananthakrishnan, learned counsel appearing for the first respondent contended that the civil revision petitioner was served with notice in the Arbitration proceedings and that he remained absent and was set exparte. He also contended that the revision petitioner did not file any application under Section 34 of the Arbitration and Conciliation Act 1996 to set aside the Award dated 24.09.2010. Therefore, he prayed for dismissal of the civil revision petition.
5.As rightly pointed out by the learned counsel appearing for the first respondent/decree holder that the civil revision petitioner did not file any application to set aside the Award passed by the Sole Arbitrator and at the time of filing the Execution Petition, he cannot claim that his signature is forged in the loan agreement. At this stage, the learned counsel appearing for the civil revision petitioner contended that when there are other judgment debtors, the civil revision petitioner's salary alone has been attached. As per Section 128 of the Indian Contract Act, the sureties are liable to pay the entire amount and their liability is immediate.
In the absence of some special security, the surety has no right to restrain the action taken by the creditor on the ground that the principal is solvent or that the creditor may have relief against the principal debtor insome other proceedings. However, in certain cases, for sufficient reasons, the court may direct for postponing the payment of the decreetal amount by the surety. However, for issuance of such directions, there has to be sufficient and reasonable grounds. Since the liability of the guarantor/surety is co-existence with that of the principal debtor and the decree holder can proceed against any one of them. The learned First Additional Subordinate Judge, Erode had also given cogent reasons for allowing the Execution Petition.
working as a conductor in Tamil Nadu State Transport Corporation and his salary was attached to the tune of Rs.2,260/- per month, I do not find any infirmity in the orders passed by the learned First Additional Subordinate Judge, Erode.
6.In the result, the civil revision petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed 22.08.2019 rrg Index : Yes/No Internet: Yes/No Speaking order/Non Speaking order To The First Additional Subordinate Judge, Erode.
R.HEMALATHA.J., rrg C.R.P.(NPD)No.3983 of 2013 and M.P.No.1 of 2013 22.08.2019