Judgment:
(Prayer: This Writ Petition Is Filed Under Articles 226 And 227 Of The Constitution Of India Praying To Quash The Order Dated 17.4.2012 Passed By The Debt Recovery Appellate Tribunal, At Chennai, In Ra.No.245/10 Vide Annexure-A.)
1. The order of the Debts Recovery Appellate Tribunal at Chennai (DRAT), dated 17.04.2012 in RA No.245/2010 is assailed in this Writ Petition.
2. Briefly stated the facts are, that respondent Nos.2 to 4 had availed of credit facility from respondent No.1-Bank. The petitioner herein was a guarantor for the said loan. As the borrowers did not repay the borrowed amount, proceedings were initiated before the Debts Recovery Tribunal at Bangalore (DRT) in OA No.199/2003 by the Bank. By order dated 06.09.2010, the DRT allowed the original application filed by the Bank against respondent Nos.2 to 4 herein directing them to pay jointly, severally and personally the amounts payable to the Bank, and dismissed the original application as against the petitioner herein. That order was assailed by the Bank before the DRAT. The DRAT by the impugned order dated 17.04.2012 has modified the order of DRT and has held that the petitioner herein was also equally liable to repay the amounts as he was a guarantor, and therefore, a direction was issued that Recovery Certificate must be issued as against the petitioner. That order is assailed in this petition.
3. We have heard learned counsel for the parties.
4. Learned counsel for the petitioner has stated that the petitioner was not in fact a guarantor for the loan which was borrowed by respondent Nos. 2 to 4; that his signatures were obtained by fraud, and therefore, he was not liable to be proceeded against by the Bank.
5. In support of the submission of learned counsel for the petitioner, there is no evidence which has been pointed out to us. On the contrary, the DRAT has noted that the documents and the evidence produced before the DRT had proved that the petitioner was a guarantor and was liable for repayment of the amount due to the Bank, as he had also mortgaged the property to secure repayment of loan. Therefore, on question of fact, the finding is as against the petitioner. The plea of fraud raised in this proceeding has not been substantiated before the DRT. In this regard, statement of objections filed by the Bank is to the effect that there was no specific averment of fraud pleaded by the petitioner and even in the cros= examination of the witness who deposed on behalf of the Bank, there was not even a suggestion that the signature of the petitioner was obtained by fraud or due to misrepresentation. That apart, under Section 128 of the Indian Contract Act, 1872, it is stated that the liability of a surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract. Learned counsel for the petitioner is unable to point out any provision in the guarantee agreement which would exonerate the petitioner from the liability, as a surety to the loan in question. In that view of the matter, we find no infirmity in the order of the DRAT. Writ Petition is dismissed accordingly.