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RAJ AGARWALA (proprietor)     05 July 2012

Liability of huf in case of personal guarantee

I have given personal guarantee with respect to a cc loan given in the name of a pvt ltd company where i am a director.The company has incurred huge losses and account has become NPA.Can the bank has the right to attach the property purchased in the name of my HUF or my wife.



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 17 Replies

Adv Archana Deshmukh (Practicing Advocate)     05 July 2012

No, only your individual share can be attached. Your wife's property cannot be attached.

RAJ AGARWALA (proprietor)     05 July 2012

What about HUF?

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com))     05 July 2012

Your share in the HUF property can be attached, but your wife's exclusive property cannot be attached as the guarantee is personal and the liability arising therefrom is also personal.But any property gifted to wife after this dispute arises may be assailed and challenged as being to done to defraud credtiors.

RAJ AGARWALA (proprietor)     05 July 2012

How do u calculate the share in HUF? and further can the bank sell off the property when there are other members in HUF?

RAJ AGARWALA (proprietor)     05 July 2012

How do u calculate the share in HUF? and further can the bank sell off the property when there are other members in HUF?

Adv Archana Deshmukh (Practicing Advocate)     05 July 2012

The bank cannot sell of the HUF property on its own. The bank will have to obtain a decree from a competant court attaching your share in the HUF, then only the bank can proceed further.

Adv Archana Deshmukh (Practicing Advocate)     05 July 2012

The bank can then go for partition for your undivided share by stepping in your shoes.

RAJ AGARWALA (proprietor)     05 July 2012

But how do they calculate my share in HUF?

Adv Archana Deshmukh (Practicing Advocate)     05 July 2012

That share will be calculated by the court depending upon the information as to how many members are there and who are the members of the HUF.

c.p.s. ramachary (1500)     05 July 2012

I agree with the opinion of Adv. Archana. Your share in HUF can be attached and sold in execution of decree or Recovery Certificate that may be obtained by the bank  against you to enforce your guarantee liability. However your property (your share) cannot be enforced under SARFAESI Act if your share is not mortgaged in addition to your personal guarantee.

c.p.s. ramachary (1500)     05 July 2012

I agree with the opinion of Adv. Archana. Your share in HUF can be attached and sold in execution of decree or Recovery Certificate that may be obtained by the bank  against you to enforce your guarantee liability. However your property (your share) cannot be enforced under SARFAESI Act if your share is not mortgaged in addition to your personal guarantee.

c.p.s. ramachary (1500)     05 July 2012

I agree with the opinion of Adv. Archana. Your share in HUF can be attached and sold in execution of decree or Recovery Certificate that may be obtained by the bank  against you to enforce your guarantee liability. However your property (your share) cannot be enforced under SARFAESI Act if your share is not mortgaged in addition to your personal guarantee.


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RAJ AGARWALA (proprietor)     05 July 2012

As per my understanding the bank will 1st move SARFAESI Act and after realising the sale procceds of the securities they will try to recover the balance by invoking the personal guarantee.Will my share of HUF property be liable to be attached by the bank?

narendra.s.p (Chief Manager(Law))     10 July 2012

coparcerners can contend that the guarantee given by you is not for the benefit of HUF hence not binding upon them. Their share cannot be made liable to for the Loan liability of the borrower. Each share holder / coparcerner should file his objections to notice under section 13(2) of SARFAESI Act that may be issued by the secured creditor.


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