(From previous issue) :
8. The. only question that calls for consideration by us in this Writ Petition is whether· under the governing law and the decisions of the Appellate Division and this Division the impugned order would sustain.
9. At the very outset it would be worthwhile to address the first part of the Rule which relates to improper service of summons being affected in violation of Section 30 of the Ain. Before addressing the issue it is to be noted that the suit was decreed ex parte and the petitioner did not proceed for setting aside the ex parte decree in terms of Section 19 and subjected himself to the execution proceeding. Now when the order of warrant of arrest was issued he has jumped upon this Division under Article 102 of the Constitution mainly assailing the impugned order of warrant of arrest by bringing an analogy of violation of Section 30, Section 6(5) second proviso and even Section 7 (which is the procedure for service of summons in respect of trial) of the Ain. In the case of Provat Kumar as referred to above the Appellate Division in clear terms observed:
“We have perused the application and heard the learned Advocate. The learned Advocate appearing for the leave petitioner submitted that the provision of Section 33 of the Artha Rin Adalat Ain, 2003 having not been complied with, the order for civil imprisonment under Section 34 of the Artha Rin Adalat Ain, 2003 was bad in the eye of law and the High Court Division arrived at its decision in not considering such aspect of law and that the Artha Rin Adalat passed the order for civil imprisonment ex parte without providing any opportunity of hearing to the judgment debtor the writ Petitioner, which is ex facie a violation of the principle of natural justice and thus the High Court Division acted illegality in passing, the impugned order. “We have perused the leave petition and considered the submissions of the learned Advocate. We have also perused the provisions of Sections 33 and 34 of Artha Rin Adalat Ain, 2003. It appears that Section 34 of the Artha Rin Adalat Ain, 2003 is clear and provides for ordering civil imprisonment lip to 6 months against a judgment-debtor for compelling to satisfy the decree. Section 34 is not dependent upon Section 33. In the instant case, the decree holder has taken’ step for auction sale of the property but there being no response, auction sale could not be held. Further, it appears from the provisions of Section 34 of the Artha Rin Adalat Ain, 2003 that the law provides for simple civil imprisonment of the judgment-debtor to compel to make the payment for satisfaction of the decree and is not an alternative punishment in lien of payment of the decretal amount. Civil imprisonment will not exempt payment of the decretal amount.”
??. ??? ??????????? ???? ???? ???? ?? ??? ????????? ???????? ?? ???? ???????. ?? ??? ???? ???????? ???????? ??? ???? ????????? ?? ???? ? ?????????. ??? ??????? ??????? ????????? ??? ??? ??????????-???? ??? ????? ????? ????????? ?? ?????? ?????. ??? ???? ??? ????????? ?? ??? ????????? ?? ???? ????? ?? ??????? ?? ?????? ?? ??? ? ?????????? ??? ???? ? ???????? ???? ??? ???????? ?? ??????????? ????. ??? ??? ?? ???? ??????? ????? ?? ?? ?????? ? ??? ???????. ??????? ??(?) ?? ??? ??????? ???? ?? ????? ??? ??????? ?????? ?? ???? ??? ??????? ?? ????? ?? ??? ????????? ???????? ?????? ???????? ?? ????? ?? ??????? ?? ??????. ?? ?? ???????? ?? ????????? ???? ??????? ??(??) ????? ???? ???? ????? ???????:
“??? ??? ????? ??-???? (?) ?? ???? ????? ????? ?????? ????????? ???????? ??? ????? ?? ??, ??? ??? ???????? ??????? ?????? ???????? ? ??????? ???????? ??? ??? ??????”
??. ?? ???????? ??? ?????? ?? ??? ???? ????????- ‘?’ ?? ??? ???????? ?? ???? ????? ???? ?? ???????? ??? ????????? ?? ?????????? ???????? ???? ??? ????. ?????????, ??? ??????? ???? ???????? ????? ?????? ??? ???????? ?? ??????? ?? (??) ?? ??? ???. ???????? ?? ????????????? ?? ????? ?????????????? ?? ??????? ?(?) ?????? ??????? ?? ??? ??? ?? ???????? ??? ?????????? ??????? ???? ??????? ?? ??? ??????? ??????? ??? ??? ?????????? ??? ?? ????? ???? ??? ??? ?? ?? ??????:-
“?(?) …………….??? ????? ?????? ??????? ???, ???? ?? ?????? ??? ??????? ???????? ??????? ? ?”?? ?”?????? (??????? ??? ?????????) ??????? ???? ??? ?????? ????? ????? ??? ??????-??????? ???????? ??? ???? ???????? ???? ?
??? ???? ???? ??, ?????? ????? ??????? ???? ???? ????? ???????? ????? ?????? ??? ????????? ??????? ??? ????? ???????? ????? ???? ????????? (????? ????? ?????????) ? ????? ???? ?????????? (????? ????? ?????????) ?? ???????? ????? ????? ?????? ????? ?
Our view is very much clear on that point. The petitioner being a guarantor is not at all absolved from the liability and question of application of the said section is redundant since no property has been mortgaged with the bank.
12. The petitioner is only a guarantor for all practical purpose. The legal position of a guarantor under law has been enumerated in Section 128 of the Contract Act which governs the field in it’s strict implication. To dispel any ambiguity on the proposition of law regarding a guarantor Section 128 of the contract Act quoted below. It enjoins:
“Surety’s liability-The liability of the surety is coextensive with that of the principal debtor, unless it is otherwise provided by the contract. ”
13. In the Case of .MM Ispahani Ltd vs Sonali Bank (1984) BLD (AD) 242 = 37 DLR (AD) I it was decided that:
“The guarantor is not only responsible for repayment of the loan, his liability to repay need not even be postponed till the principal debtor fails to repay the loan- He may be compelled before even compelling the principal debtor to repay – The choice lies with the creditor.”
14. High Court Division also held in the same manner in Sonali Bank vs Hare Krishna Das, 49 DLR 282 that the liability of the principal debtor is co-extensive with that of the guarantor. A creditor is at Liberty to pursue either the principal debtor or the guarantor according to his sweet will for realization of his dues or he can proceed against both of them simultaneously.
15. The extent of liability of the guarantor to repay the loan as aforesaid has also been well reflected in the earlier decision of Privy Council in Mahanth Singh vs UBa Yi AIR 1939 PC 11, where the creditor’s claim to sue the principal debtor became barred by limitation, it was held that the guarantor was liable to pay.
16. The same principle has also been echoed in the decision of Indian Supreme Court in the Bank of Hiber Ltd vs Damodar Prasad, AIR 1969 SC 297.
17. Moreover, Bank Company Act 1991 also by an amendment in the year 2013 amended Section 5(GaGa) of the Act and included guarantor as a defaulter which can be perceived when read with section 5(Q) of the Act. Amended Section 5GaGa of the Act says – “?(??) ?????? ?? ??????? ???? ??? ??????? ??????? ?? ?????????? ……….?”
18. Then Section-5 (Cha) enjoins-
“?(?) ??????? ???? ??? ?????? ????????, ???? ?? ?????? ???????? ?? ???? ??????? ?????? ????? ?????? ????????? ??????? ???????? ?? ?????????? ??? ??? ???????i (guarantor) ? ???? ??????????? ?????” “?herefore, even on that score the argument of the petitioner falls apart.
19. So far the argument as regard non compliance of Section 30 of the Ain let us first quote the law for better understanding:
“ ????? ???? ????????? ?????? ????? ???? ???? ??? ???? ???? ????? ???? ?? ???, ????????? ??????? ???????? ?????? ??? ???????? ????????? ????????????? ??????? ???????? ???????, ????? ????????? ???? ????? ????? ???? ????? ????? ?????? ????? ??????, ??? ????? ???????? ?????? ??????? ????? ????¯’? ??????, ??? ??? ??? ?????? ?? (????) ?????? ????? ???? ???? ???? ?? ???, ???? ????????? ???? ?????? ???? ???, ???? ???? ????? ???? ??????? ?? (????) ?????? ????? ????? ????? ?? ??? ???? ???? ???????? ????? ????? ????? ??????? ??? ?????? ????? ??????? ???????? ????????? ??? ????? ¯’???? ???? ???????, ??? ????, ???????? ???????? ??????? ??? ???? ???????, ??? ?????? ???? ??????? ???? ????? ???? ?????”
20. Section 30 of the Ain provides for publication of the name of the Incumbent in a widely circulated newspapers in the instant case the publication was made in “Dainik Banik Barta” which, as the learned counsel submits. is not at all a widely circulated Journal. There is no court fixed to judge which one of the journals is to be treated as widely circulated one and which is not. The question of deciding the score of issuing order of warrant of arrest would not under and on the provisions of Section 30 of the Ain. The ratio decidendi of the Appellate Division in the Provat Kumar’s case and the subsequent decisions of this Division as referred to above also approve the said proposition. Section 34 of the Ain is an independent section making provisions for issuing order of warrant of arrest in a fit case.
21. We hold that everything was perfected in terms of express provision of Ain and the order impugned against was passed absolutely in accordance with law. The argument pressed into service by the petitioner from different angle questioning the propriety of the order of issuing warrant of arrest therefore, does not have any legs to stand and for that reason the Rule should be discharged being devoid of any substance.
(Side linings and under linings are mine)
22. That being the position we are of the view that this Rule should be discharged.
23. In the result, the Rule is discharged without any order as to cost. The order of stay granted earlier by this court is hereby recalled and vacated.
Communicate at once.
8. The. only question that calls for consideration by us in this Writ Petition is whether· under the governing law and the decisions of the Appellate Division and this Division the impugned order would sustain.
9. At the very outset it would be worthwhile to address the first part of the Rule which relates to improper service of summons being affected in violation of Section 30 of the Ain. Before addressing the issue it is to be noted that the suit was decreed ex parte and the petitioner did not proceed for setting aside the ex parte decree in terms of Section 19 and subjected himself to the execution proceeding. Now when the order of warrant of arrest was issued he has jumped upon this Division under Article 102 of the Constitution mainly assailing the impugned order of warrant of arrest by bringing an analogy of violation of Section 30, Section 6(5) second proviso and even Section 7 (which is the procedure for service of summons in respect of trial) of the Ain. In the case of Provat Kumar as referred to above the Appellate Division in clear terms observed:
“We have perused the application and heard the learned Advocate. The learned Advocate appearing for the leave petitioner submitted that the provision of Section 33 of the Artha Rin Adalat Ain, 2003 having not been complied with, the order for civil imprisonment under Section 34 of the Artha Rin Adalat Ain, 2003 was bad in the eye of law and the High Court Division arrived at its decision in not considering such aspect of law and that the Artha Rin Adalat passed the order for civil imprisonment ex parte without providing any opportunity of hearing to the judgment debtor the writ Petitioner, which is ex facie a violation of the principle of natural justice and thus the High Court Division acted illegality in passing, the impugned order. “We have perused the leave petition and considered the submissions of the learned Advocate. We have also perused the provisions of Sections 33 and 34 of Artha Rin Adalat Ain, 2003. It appears that Section 34 of the Artha Rin Adalat Ain, 2003 is clear and provides for ordering civil imprisonment lip to 6 months against a judgment-debtor for compelling to satisfy the decree. Section 34 is not dependent upon Section 33. In the instant case, the decree holder has taken’ step for auction sale of the property but there being no response, auction sale could not be held. Further, it appears from the provisions of Section 34 of the Artha Rin Adalat Ain, 2003 that the law provides for simple civil imprisonment of the judgment-debtor to compel to make the payment for satisfaction of the decree and is not an alternative punishment in lien of payment of the decretal amount. Civil imprisonment will not exempt payment of the decretal amount.”
??. ??? ??????????? ???? ???? ???? ?? ??? ????????? ???????? ?? ???? ???????. ?? ??? ???? ???????? ???????? ??? ???? ????????? ?? ???? ? ?????????. ??? ??????? ??????? ????????? ??? ??? ??????????-???? ??? ????? ????? ????????? ?? ?????? ?????. ??? ???? ??? ????????? ?? ??? ????????? ?? ???? ????? ?? ??????? ?? ?????? ?? ??? ? ?????????? ??? ???? ? ???????? ???? ??? ???????? ?? ??????????? ????. ??? ??? ?? ???? ??????? ????? ?? ?? ?????? ? ??? ???????. ??????? ??(?) ?? ??? ??????? ???? ?? ????? ??? ??????? ?????? ?? ???? ??? ??????? ?? ????? ?? ??? ????????? ???????? ?????? ???????? ?? ????? ?? ??????? ?? ??????. ?? ?? ???????? ?? ????????? ???? ??????? ??(??) ????? ???? ???? ????? ???????:
“??? ??? ????? ??-???? (?) ?? ???? ????? ????? ?????? ????????? ???????? ??? ????? ?? ??, ??? ??? ???????? ??????? ?????? ???????? ? ??????? ???????? ??? ??? ??????”
??. ?? ???????? ??? ?????? ?? ??? ???? ????????- ‘?’ ?? ??? ???????? ?? ???? ????? ???? ?? ???????? ??? ????????? ?? ?????????? ???????? ???? ??? ????. ?????????, ??? ??????? ???? ???????? ????? ?????? ??? ???????? ?? ??????? ?? (??) ?? ??? ???. ???????? ?? ????????????? ?? ????? ?????????????? ?? ??????? ?(?) ?????? ??????? ?? ??? ??? ?? ???????? ??? ?????????? ??????? ???? ??????? ?? ??? ??????? ??????? ??? ??? ?????????? ??? ?? ????? ???? ??? ??? ?? ?? ??????:-
“?(?) …………….??? ????? ?????? ??????? ???, ???? ?? ?????? ??? ??????? ???????? ??????? ? ?”?? ?”?????? (??????? ??? ?????????) ??????? ???? ??? ?????? ????? ????? ??? ??????-??????? ???????? ??? ???? ???????? ???? ?
??? ???? ???? ??, ?????? ????? ??????? ???? ???? ????? ???????? ????? ?????? ??? ????????? ??????? ??? ????? ???????? ????? ???? ????????? (????? ????? ?????????) ? ????? ???? ?????????? (????? ????? ?????????) ?? ???????? ????? ????? ?????? ????? ?
Our view is very much clear on that point. The petitioner being a guarantor is not at all absolved from the liability and question of application of the said section is redundant since no property has been mortgaged with the bank.
12. The petitioner is only a guarantor for all practical purpose. The legal position of a guarantor under law has been enumerated in Section 128 of the Contract Act which governs the field in it’s strict implication. To dispel any ambiguity on the proposition of law regarding a guarantor Section 128 of the contract Act quoted below. It enjoins:
“Surety’s liability-The liability of the surety is coextensive with that of the principal debtor, unless it is otherwise provided by the contract. ”
13. In the Case of .MM Ispahani Ltd vs Sonali Bank (1984) BLD (AD) 242 = 37 DLR (AD) I it was decided that:
“The guarantor is not only responsible for repayment of the loan, his liability to repay need not even be postponed till the principal debtor fails to repay the loan- He may be compelled before even compelling the principal debtor to repay – The choice lies with the creditor.”
14. High Court Division also held in the same manner in Sonali Bank vs Hare Krishna Das, 49 DLR 282 that the liability of the principal debtor is co-extensive with that of the guarantor. A creditor is at Liberty to pursue either the principal debtor or the guarantor according to his sweet will for realization of his dues or he can proceed against both of them simultaneously.
15. The extent of liability of the guarantor to repay the loan as aforesaid has also been well reflected in the earlier decision of Privy Council in Mahanth Singh vs UBa Yi AIR 1939 PC 11, where the creditor’s claim to sue the principal debtor became barred by limitation, it was held that the guarantor was liable to pay.
16. The same principle has also been echoed in the decision of Indian Supreme Court in the Bank of Hiber Ltd vs Damodar Prasad, AIR 1969 SC 297.
17. Moreover, Bank Company Act 1991 also by an amendment in the year 2013 amended Section 5(GaGa) of the Act and included guarantor as a defaulter which can be perceived when read with section 5(Q) of the Act. Amended Section 5GaGa of the Act says – “?(??) ?????? ?? ??????? ???? ??? ??????? ??????? ?? ?????????? ……….?”
18. Then Section-5 (Cha) enjoins-
“?(?) ??????? ???? ??? ?????? ????????, ???? ?? ?????? ???????? ?? ???? ??????? ?????? ????? ?????? ????????? ??????? ???????? ?? ?????????? ??? ??? ???????i (guarantor) ? ???? ??????????? ?????” “?herefore, even on that score the argument of the petitioner falls apart.
19. So far the argument as regard non compliance of Section 30 of the Ain let us first quote the law for better understanding:
“ ????? ???? ????????? ?????? ????? ???? ???? ??? ???? ???? ????? ???? ?? ???, ????????? ??????? ???????? ?????? ??? ???????? ????????? ????????????? ??????? ???????? ???????, ????? ????????? ???? ????? ????? ???? ????? ????? ?????? ????? ??????, ??? ????? ???????? ?????? ??????? ????? ????¯’? ??????, ??? ??? ??? ?????? ?? (????) ?????? ????? ???? ???? ???? ?? ???, ???? ????????? ???? ?????? ???? ???, ???? ???? ????? ???? ??????? ?? (????) ?????? ????? ????? ????? ?? ??? ???? ???? ???????? ????? ????? ????? ??????? ??? ?????? ????? ??????? ???????? ????????? ??? ????? ¯’???? ???? ???????, ??? ????, ???????? ???????? ??????? ??? ???? ???????, ??? ?????? ???? ??????? ???? ????? ???? ?????”
20. Section 30 of the Ain provides for publication of the name of the Incumbent in a widely circulated newspapers in the instant case the publication was made in “Dainik Banik Barta” which, as the learned counsel submits. is not at all a widely circulated Journal. There is no court fixed to judge which one of the journals is to be treated as widely circulated one and which is not. The question of deciding the score of issuing order of warrant of arrest would not under and on the provisions of Section 30 of the Ain. The ratio decidendi of the Appellate Division in the Provat Kumar’s case and the subsequent decisions of this Division as referred to above also approve the said proposition. Section 34 of the Ain is an independent section making provisions for issuing order of warrant of arrest in a fit case.
21. We hold that everything was perfected in terms of express provision of Ain and the order impugned against was passed absolutely in accordance with law. The argument pressed into service by the petitioner from different angle questioning the propriety of the order of issuing warrant of arrest therefore, does not have any legs to stand and for that reason the Rule should be discharged being devoid of any substance.
(Side linings and under linings are mine)
22. That being the position we are of the view that this Rule should be discharged.
23. In the result, the Rule is discharged without any order as to cost. The order of stay granted earlier by this court is hereby recalled and vacated.
Communicate at once.
