The Secretary The Alwaye State Transport Staff Co-Operative Society Ltd. vs Madani

Antony Dominic, J.—Heard the learned counsel for the appellant, counsel appearing for respondents 1 and 2, learned Standing Counsel for respondents 3 to 6 and the learned counsel appearing for the 7th respondent.

This appeal arises from the judgment of the learned Single Judge in W.P. (C) No. 8987 of 2010. The Writ Petition was filed by respondents 1 and 2, who are the guarantors of a loan availed of by the 7th respondent from the appellant. Default was committed by the 7th respondent and recovery proceedings were initiated against respondents 1 and 2, being the guarantors. It was at that stage respondents 1 and 2 filed the Writ Petition contending that terminal benefits are due to the 7th respondent from KSRTC, where he is employed and that the liability should be made good from the terminal benefits.

The fact that terminal benefits are due from the 7th respondent was confirmed by the KSRTC and taking note of such submissions, the learned Single Judge disposed of the Writ Petition, directing as follows:-

This Writ Petition is accordingly disposed of recording the above undertaking of the standing counsel that if sufficient amounts are available to be paid to the 5th respondent as retirement benefits and if the said benefits have not been paid till date, the amounts due to the 6th respondent shall be recovered and only the balance amount would be paid to the 5th respondent. Needless to say that if the amounts available to be paid as the retirement benefits of the 5th respondent is not sufficient to clear the liabilities to the 6th respondent, the KSRTC would be free to recover the necessary balance amounts from the salary of the petitioners.

In this appeal, it is contended by the learned counsel for the appellant that terminal benefits became due to 7th respondent consequent on his compulsory retirement and that since the order of retirement has not attained finality due to the litigations initiated by the 7th respondent, the amount is still not disbursed. Therefore, he says that there is no justification for preventing them from continuing the recovery proceedings against respondents 1 and 2, being the guarantors to the liability incurred by the 7th respondent.

The compulsory retirement of the 7th respondent has not attained finality on account of the litigations, as submitted by the counsel appearing for the 7th respondent. Admittedly respondents 1 and 2 are guarantors to the loan availed by the 7th respondent. Therefore, their liability is joint and several and the appellant is entitled to proceed against all of them, either of them or any of them. Therefore, respondents 1 & 2 could not have, in any manner, prevented the recovery proceedings for realising the dues to the appellant. It is despite that, only on account of compassion, the learned Single Judge has passed a discretionary order. However, as a result of that order, the situation is that, the dues could not be realised, even after the lapse of almost 3 years. Such a situation has been created only on account of the litigations initiated by the 7th respondent.

In such circumstances, we are satisfied that there is absolutely no law or equity in preventing the appellant from recovering the amounts that are due, from either the defaulter or guarantor or any one of them.

The judgment of the learned Single Judge is set aside and the Writ Petition filed by respondents 1 and 2 will stand dismissed.

The appeal is allowed as above.