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madhu mittal (director)     17 September 2011

Summary suit against guarantor for dishonoured cheques of bo

A loan repayable in 36 monthly instalments by post dated cheques were given to borrower “B” on 01-04-2011 on the basis of guarantee of “G” given on same day.  First 10 cheques were passed.  Now  four cheques of  “B” was dishonoured and 22 cheques yet to be presented in bank as the date of cheque yet to come.  Now Creditor “C” wants to invoke guarantee of G regarding only  four dishonoured cheques and also wants to file summary suit against G the guarantor only on the basis of four dishounored cheques,  in addition to complaint against borrower i.e. the drawer of cheque in section 138 N I Act. Whether it is possible and as per law. Any other  remedy, so that guarantor should be involved in court proceeding without leaving right of presentment or getting encashed 22 posted cheques whenever their dated come ?



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 3 Replies

Sanjeev Kuchhal (Publishers)     17 September 2011

Cause of action to sue a guarantor is independent of the cause of action against the principal borrower. Guarantor can be sued in respect of whether the principal borrower has been sued or not. Creditor is not bound to exhaust his remedy against the principal before suing the surety. Liability of the guarantor and principal debtors is co-extensive and not in alternative. Summary suit would be maintainable.

Pradeep Kumar (Lawyer)     18 October 2011

Dear Mam,

Although Summary suit is maintainable and it depends onthe court to issue summon for Judgment against you.I strongly believe that you can defend this case as the complainant has taken cheques from the person and the recovery lies only under the 138 of N.I Act.If they exhaust that option than also,I believe that they will be wasting their time to file a complaint against a Guarantor.

 

Pradeep Kumar & Associates

                     Advocates

Chamber-208,CSA Block,

District Court,Gurgaon

(M) 09871765000

(O)0124-4078500

Advocate Rajiv Mishra (advocate)     21 October 2011

Definately a suit is maintanable against  guaranter, what the Guarantee means.
 


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