Decided on August 23,2004



Pratibha Upasani, - (1.) THIS Misc. Appeal is filed by the appellant/original defendant No. 3 Dinesh Trilokchand Choudhary being aggrieved by the order dated 5th May, 2004 passed by the learned Presiding Officer of Debts Recovery Tribunal-Ill, Mumbai on Exhibit No. 9 in Original Application No. 282 of 2003. By the impugned order, the learned Presiding Officer rejected the application made by the appellant for striking out his name from the proceedings on the ground that he was relieved as a guarantor in the year 1990 and therefore, he was absolved from the liability as a guarantor.
(2.) I have heard Mr. A.R. Pandey for the appellant and Mr. Faizal Sayyad for the respondents. I have also gone through the proceedings and in my view, the learned Presiding Officer has correctly passed the order. Few facts which are required to be stated are as follows : The original application was filed by the applicant ICICI Bank Limited for recovery of the amount of Rs. 11,52,12,670/- as on 15.8.2003 with further interest and other charges. The loan was sanctioned by the applicant Bank to the defendant No. 1 company. There were four directors of the defendant No. 1 M/s. Raigad Castings Limited namely Mr. S.K. Mali, Mr. V.P. Mall, Mr. Dinesh Choudhary (present appellant) and Mr. Mukesh Choudhary. They were also the guarantors. The appellant had given his personal guarantee for the loan transaction. He resigned as a director of the company along with Mr. Mukesh Choudhary in the year 1993 and other directors had already resigned in the year 1990 and new management of the company was transferred to one Mr. Jitendra Singh and his family members and Mr. Jitendra Singh, Mr. Ravindra Singh, Mr. Rajendra Singh and Mr. Arbindra Singh were substituted in the place of outgoing directors Mr. Mukesh Choudhary and the defendant No. 3/present appellant. Case of the appellant is that after he resigned from the directorship in the year 1993, he addressed a letter to the defendant No. 1 company on 22.7.1994 requesting them to get his personal guarantee released. The company by its letter dated 25.7.1994 requested the applicant Bank to release the personal guarantee as given by the defendant No. 3/present appellant. Case of the appellant further is that Mr. Jitendra Singh and Mr. Ravindra Singh visited the office of the applicant Bank where the personal guarantees of the defendant No. 3/present appellant and Mr. S.K. Mall were substituted or replaced with the personal guarantees of Mr. Jitendra Singh and Mr. Ravindra Singh and necessary documents were signed and the personal guarantee of Mr. Jitendra Singh and Mr. Ravindra Singh were taken on record and the present appellant was released from the personal guarantee. On these grounds, it was prayed by the appellant that his name be struck off from the proceedings of the original application and he be discharged as a guarantor. The learned Presiding Officer however, by his reasoned order dated 5.5.2004 rejected his application and in my view, rightly so.
(3.) IT is an admitted position that initially the defendant No. 3/the present appellant was in duel capacity i.e. director and guarantor. As a guarantor he had executed the guarantee deed in favour of the applicant Bank and accepted the liability. In the application on which the impugned order has been passed, a specific defence was taken by the defendant No. 3 that, he had been absolved from the liability as there was variance in the terms of the contract and secondly he had been relieved by the Bank when fresh guarantors were substituted by the new management of the defendant No. 1 company.;

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