- (1.) PRESENT writ petition has been filed claiming for following reliefs : "(i) Issue a writ of certiorari or a writ, order or direction in the nature of certiorari quashing the impugned order dated 23.12.2008 passed by opp. Party No. 3 as contained in annexure No. 1 to this writ petition. (ii) Issue a writ of mandamus or a writ, order or direction in the nature of mandamus directing the opposite parties to release the matured amount of L.I.C. Policy No. 210453978 of the petitioner debited by Insurance Company along with interest. (iii) Issue a writ of mandamus or a writ, order or direction in the nature of mandamus directing the opposite parties not to take coercive methods against the petitioner for recovery of loan amount of Shri Prabal Kumar Tiwari. (iv) Issue a writ of mandamus or a writ, order or direction in the nature of mandamus directing the opposite parties to recover amount of loan as per directions of Hon'ble Supreme Court in case of Pawan Kumar Jain v. Pradeshiya Industrial and Investment Corporation of U. P. Ltd. And others reported in (2004) 6 SCC 758. (v) Issue any other suitable writ, order or direction which this Hon'ble Court may deem fit, just and proper in the circumstances of the case as also in the interest of justice. (vi) Allow the writ petition with costs in favour of the petitioner."
(2.) BRIEF background the case as disclosed by the petitioner in the writ petition is that his real brother Prabal Kumar Tiwari had applied for loan of Rs. 40,000/- under the scheme run by opposite Party No. 1. It has been stated that the loan application of Prabal Kumar Tiwari was forwarded by opposite party No. 1, and thereafter loan amount was disbursed to him after mortgaging L.I.C. Policy Bond No. 210453978 of the petitioner. It has been stated that the said Prabal Kumar Tiwari deposited some instalments and thereafter he suffered loss in the business and was unable to pay the remaining instalments of loan amount. It has been stated that said Prabal Kumar Tiwari also moved application praying that interest be not taken and remaining amount may be recovered from him in easy instalments. The petitioner is guarantor and states that despite availability of the original loanee, respondent Nos. 2 and 3 have initiated recovery proceedings against him from the L.I.C. Policy bond. In this direction letter was sent on 27.07.2005 addressed to the petitioner. On 04.02.2008 again letter was sent asking the petitioner to ensure the payment, failing which security is there, and the same would be encashed. Petitioner, thereafter represented the matter before opposite party No. 3 on 07.03.2008 and requested that the amount may not be recovered from him, as the real and original debtor is available and the amount may be recovered from him. Petitioner has contended that he had preferred writ petition No. 3006 (MB) of 2008 before this Court, and this Court on 04.11.2008 had asked the authority concerned to consider the petitioner's representation, in accordance with law by passing reasoned order. Thereafter decision has been taken on 23.12.2008, and said order is subject matter of challenge in the instant writ petition. Counter affidavit has been filed, and therein categorical plea has been taken that for the loan ion question, the petitioner and one Raj Kumar were guarantor by submitting their L.I.C. Policy Bonds, and once it is not disputed that Prabal Kumar is unable to repay the loan amount, then the notices have been issued to the petitioner for payment of outstanding loan, and as far as Prabal Kumar Tiwari is concerned, he is unable to pay the debt of the bank and has become willful defaulter, has removed all his belongings and his whereabout is not known. It has been further stated that the Bank has every legal right to recover the loan amount from the F.D.Rs. of the guarantor, which were surrendered in favour of the Bank and have been kept by the Bank, as the guarantor owns co-extensive liability as provided under Section 128 of the Contract Act. It has been further stated that objective consideration has been made, and the present writ petition has no substance and deserves to be dismissed.
(3.) AFTER pleadings mentioned above have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties.;