Calcutta High Court (Appellete Side)
Sukla Biswas @ Smt. Sukla Biswas vs The State Of West Bengal & Ors on 3 July, 2019
Author: Biswanath Somadder
Bench: Biswanath Somadder
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IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Biswanath Somadder
AND
The Hon'ble Justice Arindam Mukherjee
MAT 1116 of 2018
with
CAN 7639 of 2018
Sukla Biswas @ Smt. Sukla Biswas
Vs.
The State of West Bengal & Ors.
Mr. Suddhasatva Banerjee
Mr. Saunak Sengupta
... For appellant/applicant.
Mr. Saikat Chatterjee, led by
Mr. Srijan Nayak
... For the Cooperative Bank.
Mr. Raja Saha
Mr. Amit Kumar Ghosh
... For the State.
Heard on : 03.7.2019.
Judgment on: 03.7.2019.
Biswanath Somadder, J.
By consent of the parties, the appeal is treated as on day's list and taken up for consideration along with the application for stay. 2 The instant appeal arises out of a judgment and order dated 11th September, 2018, passed by a learned Single Judge in W. P. 14339 (W) of 2018 (Sukla Biswas @ Smt. Sukla Biswas vs. The State of West Bengal & Ors.). By the impugned judgment and order, the writ petition was disposed of in the following manner: -
"The writ-petitioner is the wife of the principal-debtor. She has also executed four several deeds of mortgages-cum- guarantee. Three of such deeds are not traceable. All the four deeds have been registered with the ADSR, Rampurhat. The transcribed deeds in the records of the ADSR, Rampurhat, have since been partially destroyed. The portion of available records have been produced by the learned Counsel for the State.
One of such deed dated October 20, 1995 of mortgage- cum-personal guarantee is admitted by the writ-petitioner. The said deed of mortgage-cum-guarantee dated October 20, 1995 has been produced in court along with an English translation.
By an earlier order dated June 4, 2018 passed in WP 5862 (W) of 2018, the liability of the principal-debtor as well as the Guarantor/Mortgagor-wife, was directed to be determined by the Arbitrator. The Tribunal proceeded with expedition. In 3 course of the proceedings, the Tribunal had refused to call for certain evidence. The writ-petitioner is aggrieved by the same. The said documents were required to prove the signature of the mortgagor/guarantor-wife/ petitioner before me.
The petitioner-wife admits the said document dated 04.06.2018 but contends that her liability is restricted to a sum of Rs.2 lakhs and that too covered only in respect of a property mentioned in the schedule to the deed of mortgage- cum-guarantee dated October 20, 1995.
It appears to me from a plain reading of the said deed dated October 20, 1995 that the same is in addition to being evidence of mortgage of certain property is also in nature of a continuing guarantee to cover all and every other liabilities of the principal-debtor/ husband, to include principal as interest. The same is evident from paragraph 12 of the said deed. The liability of the principal-debtor is in the area of about Rs.9 crores and odd. Certain properties have already been sold to recover the dues of the principal-debtor.
Mr. Malay Kumar Basu, learned Senior Advocate, also contends that there are two guarantors namely Manas Ganguly and the writ-petitioner. The Bank could not have chosen to proceed only against the writ-petitioner. 4
It is trite law that as per the provisions of the Contract Act, the Bank is at liberty to proceed against any particular or any of the guarantors and or principal-debtor as the liability of such persons is co-extensive with each other.
In these circumstances, I hold that the writ-petitioner is liable for the entire due of her husband. The Bank shall be at liberty to proceed against the writ-petitioner as also against the other surety and/or guarantor namely Manas Ganguly including the principal-debtor.
The arbitral award is modified to this extent. The Bank shall be at liberty to put the award in execution expeditiously.
There shall be an injunction on the writ-petitioner as well as the guarantor Manas Ganguly as well as the principal- debtor and or their heirs, agents and or assigns from in any way alienating, encumbering or disposing of or otherwise dealing with any or their other properties till such time the Bank's dues are not satisfied. The Bank shall immediately engage an appropriate agency to trace out all the assets standing in the name of the writ-petitioner and her husband as also that of Mr. Manas Ganguly. The injunction shall operate thereon.
The expression 'property' includes both moveable and immovable and the deposit accounts standing in the name of 5 the writ-petitioner, her husband and Mr. Manas Ganguly, in any place or in any authority or Depository Participant or Bank in the country.
With the above observations, the writ-petition being WP 14339 (W) of 2018 is disposed of. No order as to costs."
The appeal has been preferred by the writ petitioner, Sukla Biswas @ Smt. Sukla Biswas.
Upon a plain reading of the impugned judgment and order, we notice that the learned Single Judge - upon considering the facts of the case - has held that the appellant/writ petitioner was liable for the entire dues of her husband. As such, the writ Court granted the concerned Cooperative Bank liberty to proceed against the appellant/writ petitioner as also against the other surety and/or guarantor, named, Manas Ganguly, including the principal-debtor.
We have perused the arbitral award. We also do not notice any palpable infirmity or perversity in the impugned judgment and order, which would warrant any interference in an Intra-Court Mandamus Appeal. That apart and in any event, the impugned judgment and order is supported with cogent and justifiable reasons. The modification of the arbitral award to the extent as indicated by the learned Single Judge cannot be held to be unjustified nor can we interfere with the injunction imposed upon the appellant/writ petitioner.
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For reasons stated above, the appeal and the application for stay are liable to be dismissed and stand accordingly dismissed. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates of the parties.
(Biswanath Somadder, J.)
I agree. (Arindam Mukherjee, J.)
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