• Guarantor for secured load from bank by my brother

My name is Suman Arora. I was guarantor for a loan of Rs. 800000/- granted by Bassein Catholic Co-op Bank Ltd. to my Brother on 8.2.2018. Loan was granted against mortgage of property. He continued paying EMI of Rs. 11478/- for eight nine months and thereafter discontinued.
Bank has sent letter to my Company through Speed Post for salary deduction towards repayment of loan instalment. 

Had given guarantee because I was told there will not be any financial liability on me as guarantor because property is mortgaged and in case of default Bank can confiscate property and recover loan amount. My relation with my brother has gone bad. It was good when he had taken loan.

Please help me how do I proceed. 

Thanks & regards

SUMAN
Asked 5 years ago in Civil Law

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18 Answers

liability of principal debtor is co extensive with that of guarantor 

 

2) if your brother has defaulted in payment of installments bank can take recovery proceedings against you and your brother 

 

3) request bank to auction the property for recovery of loan 

 

4) your company can request bank to obtain court orders for salary deduction towards loan repayment installment 

Ajay Sethi
Advocate, Mumbai
96119 Answers
7731 Consultations

5.0 on 5.0

1) Bank can't deduct payment from your salary account when property is mortgage ask bank to auction the property and recover their loans.

 

If you want I can provide you citation cases at reasonable price.

Ganesh Kadam
Advocate, Pune
12949 Answers
258 Consultations

4.9 on 5.0

the definition of borrower given in section 2[f] of SARFAESI Act is as under:

 

(f) "borrower" means any person who has been granted financial assistance by any bank or financial institution or who has given any guarantee or created any mortgage or pledge as security for the financial assistance granted by any bank or financial institution and includes a person who becomes borrower of a securitisation company or reconstruction company consequent upon acquisition by it of any rights or interest of any bank or financial institution in relation to such financial assistance 7[or who has raised funds through issue of debt securities];

 

if you read this definition, the guarantor is also a borrower!!

 

further plz be enlightened on s.13[11] of SARFAESI Act which states as under:

 

(11) Without prejudice to the rights conferred on the secured creditor under or by this section, the secured creditor shall be entitled to proceed against the guarantors or sell the pledged assets without first taking any of the measures specified in clauses (a) to (d) of sub­section (4) in relation to the secured assets under this Act.

 

Secured creditor means the bank

 

thus if you agreed to guarantee the repayment of loan, then bank is entitled to take action against you even without touching the mortgaged asset

the bank will not be concerned about the representation made by your brother to you at the time of taking the loan that no financial liability will be faced by you

 

Yusuf Rampurawala
Advocate, Mumbai
7625 Answers
79 Consultations

5.0 on 5.0

company can reply to bank to obtain court orders then only would deduct from salary 

Ajay Sethi
Advocate, Mumbai
96119 Answers
7731 Consultations

5.0 on 5.0

the Bank of Bihar Limited v. Dr. Damodar Prasad and Anr.  [AIR 1969 SC 297.] In the said matter, the Supreme Court has observed that under Section 128, save as provided in the contract, the liability of the surety is co-extensive with that of the principal-debtor. The surety becomes liable to pay the entire amount. His liability is immediate. It is not deferred until the creditor exhausts his remedies against the principal-debtor. In the absence of some special equity the surety has no right to restrain an action against him by the creditor on the ground that the principal is solvent or that the creditor may have relief against principal in some other proceedings. Likewise where the creditor has obtained a decree against the surety and the principal, the surety has no right to restrain execution against him until the creditor has exhausted his remedies against the principal. The Supreme Court further observed that in the matter in hand the plaintiff could obtain a decree against the surety and the principal-debtor. In the said matter, the plaintiff filed a suit and could obtain a decree against the principal-debtor so also against the surety with an embargo that plaintiff should be at liberty to enforce its dues against the surety only after exhausting its remedies against the principal debtor. The Supreme Court observed that direction for postponing the payment of decretal amount must be specific and must give sufficient reasons. It was further observed that the surety was duty bound to pay the decretal amount and on such payment the would be subrogated to the rights of the creditor under Section 140. The Apex Court was also of the opinion that such a direction would make the decree useless and would also make the surety useless. In the said matter, the creditor proceeded against the original debtor so also against the surety and in the joint action he could secure a decree against both. The Supreme Court was of the opinion that putting such a restriction on the right of the creditor would not be in accordance with law.

 

Your rating matters least to me

 

but the law is well settled [as quoted above from the extract of a Supreme Court judgment]

 

its not that in your case the debt has become time barred

 

the debt is within time, thus bank can move against surety/guarantor without taking action against the principal borrower

 

had the debt become time barred, then the bank could not have sought to recover its dues from your salary account towards discharge of your obligation as a guarantor

 

 


however despite the above there is one remedy which you have

if the bank has sought to recover the loan from you by asking your company to transfer your salary to the bank against the loan repayment, then since you will be discharging your obligation of a guarantor, you have the right to sue your brother to recover the amount from him

also you have one more right 

the property which is mortgaged with the bank by your brother will be considered as a security for you which you can then sell by public auction to recover the moneys which you had to pay to the bank due to your guarantorship

so understand the law first before giving your stupid ratings

Yusuf Rampurawala
Advocate, Mumbai
7625 Answers
79 Consultations

5.0 on 5.0

You need to challenge the said order of salary deduction before court

Prashant Nayak
Advocate, Mumbai
32301 Answers
192 Consultations

4.1 on 5.0

Dear client,

Directly bank cannot ask for attachment of your salary account. Have to get court orders and for that bank will have to make you party in case along with brother. 

Well, bank can proceed directly to guarantor to recover loan. 

But at present no salary deduction. Better send legal notice to bank to proceed against brother mortgage property.

Yogendra Singh Rajawat
Advocate, Jaipur
22904 Answers
31 Consultations

4.4 on 5.0

The guarantor of a loan is liable to pay it if the debtor fails to clear it. For more details you need to personally contact with relevant documents to an advocate. 

Mohammed Mujeeb
Advocate, Hyderabad
19306 Answers
32 Consultations

4.7 on 5.0

See borrower and guarantor has same liability in the loan if the bank fails to recover amount from the borrower it can get order to attach the account and property of guarantor if the borrower fails. 

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

You can reply to banks letter stating that there is no order of court for attachment of salary and further bank can first take step against the borrower property and then can proceed against you,

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

Company can decline to deduct EMI amount 

 

2) insist that bank obtain court orders 

 

3) you can sue your brother to recover money paid by you in repayment of bank loan 

Ajay Sethi
Advocate, Mumbai
96119 Answers
7731 Consultations

5.0 on 5.0

See.you can write to bank that there is no court order to attach your salary and further you can inform.the company that without court order on instruction of bank they cannot do same.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

the sole responsibility of the guarantor to pay off the remaining loan amount. In case, the guarantor doesn’t repay, he/she will also be considered as a willful defaulter.bank can recover from both guarantors. 

Mohammed Mujeeb
Advocate, Hyderabad
19306 Answers
32 Consultations

4.7 on 5.0

You can also complaint to banking ombudsman man for the same

Prashant Nayak
Advocate, Mumbai
32301 Answers
192 Consultations

4.1 on 5.0

This may be cause , bank employee in connivance with your brother , committing above act. Don't worry. No right to ask deduction.

Yogendra Singh Rajawat
Advocate, Jaipur
22904 Answers
31 Consultations

4.4 on 5.0

The bank cannot ask your employer to deduct the loan amount from your salary directly.

If at all the bank would like to recover the amount then it has to follow the due process of law, i.e. by first serving legal demand notice on the borrower and then to bring the immovable property for auction sale after which it can file a suit for recovery through court of law wherein it will implead you as a party to the money recovery suit and if the court passes an order to recover the same from your salary then only your employer shall be obliged to recover the same from your salary.

Now you can ask your employer to reject their claim and ask them to follow due process of law.  

T Kalaiselvan
Advocate, Vellore
86320 Answers
2292 Consultations

5.0 on 5.0

Since they have sent a letter to your employer, it becomes the duty of your employer to give a suitable reply and not you.

 

T Kalaiselvan
Advocate, Vellore
86320 Answers
2292 Consultations

5.0 on 5.0

I once again reiterate that the bank cannot ask your employer to deduct the dues from your salary because bank is not an authority, hence your employer may reject their claim and can even instruct the bank top not send any such letters in their personal capacity, they may approach court for this purpose and not directly the employer.

T Kalaiselvan
Advocate, Vellore
86320 Answers
2292 Consultations

5.0 on 5.0

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