Vineet Pandey vs State Of U.P. Thru. Prin. Secy. Deptt. Of Cooperative Lko. And 3 Others

A.F.R.
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
WRIT - C No. - 6410 of 2026
Vineet Pandey …..Petitioner(s)
Versus
State of U.P. Thru. Prin. Secy. Deptt.
of Cooperative Lko. And 3 others …..Respondent(s)
Along with:
1. WRIT - C No. - 6423 of 2026 :
Anoop Kumar Mishra Versus State of U.P. and 3 others
Counsel for Petitioner(s) : Anand Dubey, Abhishek Dwivedi
Counsel for Respondent(s) : C.S.C., A.S.G.I.
Court No. - 3
HON'BLE SHEKHAR B. SARAF, J.
HON'BLE ABDHESH KUMAR CHAUDHARY, J.
1. Heard Shri Anand Dubey, learned Counsel appearing on behalf of
the petitioners, as well as Shri Nirankar Singh, appearing on behalf of
the respondent No.2 - U. P. Postal Primary Cooperative Bank Limited,
and learned Additional Chief Standing Counsel for the State-
respondent(s) and perused the materials available on record.
2. Since both the writ petitions filed by two distinct individual
petitioners, raise common question of law and are based on over-lapping
facts, these writ petitions are being decided by this common order.

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WRIC No. - 6410 of 2026
3. Apparently, both these writ petitioners substantially seek the
following main relief(s):-
“(i) To issue a suitable writ, order or direction in the nature of
certiorary thereby quashing the recovery order if any passed
against the petitioner for recovery of Rs. 10000.00 being made
each month from the petitioner being made by the opposite
parties
(ii) To issue a suitable writ, order or direction in the nature of
mandamus commanding the opposite parties not to made
recovery of Rs. 10000.00 per month from the salary of the
petitioner. ”
4. Vineet Pandey, the petitioner in Writ-C No. 6410 of 2026; and
Anoop Kumar Mishra, petitioner in Writ-C No. 6423 of 2026, had been
serving as ‘Postal Assistant’ in Balrampur Post Office, at Balrampur.
Both these writ petitioners stood as ‘guarantor’ for the loans availed by
one of their colleague namely, Vikrant Dubey, (hereinafter referred to as
“the principal borrower”), who had been also working as a ‘Postal
Assistant’ in Mankapur Post Office, at District Gonda. The facts reveal
that the principal borrower availed three loans from the respondent No.2
i.e. U. P. Postal Primary Cooperative Bank Limited, situated at 3-
Balmiki Marg, Lucknow, during 2022-23, being, (i) festival loan of
50,000/- (ii) short-term loan of 3,00,000/- and (iii) personal loan of
₹ ₹
18,00,000/-.
₹
5. The principal borrower having been defaulted in repayment of the
aforesaid loan, the respondent-Bank initiated recovery proceedings
against the principal borrower and simultaneously, sought to recover the
outstanding dues from the writ petitioners in their capacity as a
‘guarantor’. In furtherance of such recovery, the respondent-Bank
addressed a communication to the Postal Department, requesting
deduction of a sum of 10,000/- per month from the salary of each of
₹
these petitioners towards recovery of the outstanding loan amount.

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WRIC No. - 6410 of 2026
6. Aggrieved by the aforesaid proposed recovery from their salaries,
the petitioners have approached this Court under Article 226 of the
Constitution of India, contending, inter alia , that the respondents are
bound first to exhaust all remedies available against the principal
borrower and may proceed against the guarantor only in respect of any
residual amount remaining unpaid after such exhaustion.
7. The learned Counsel for the petitioners has submitted that the
impugned recovery proceedings are illegal and arbitrary in nature. It has
been contended by the learned Counsel for the petitioners that the settled
principle is that the creditor must first exhaust remedies against the
principal debtor, only thereafter, can the guarantor be proceeded against.
Simultaneous recovery from both the principal borrower and the
guarantor is impermissible and contrary to the concept of guarantee. He
has relied on paragraph nos. 10 and 11 of the judgment rendered in the
case of Ram Kishun v. State of U.P., reported in (2012) 11 SCC 511 in
this regard.
8. Learned Counsel for the petitioners has further submitted that the
respondent No. 4, vide its letter dated 06.03.2026, had specifically called
upon respondent-Bank to explain, why recovery was not being effected
from the principal borrower and had cautioned that recovery from the
guarantors would not be proper, until the status of Vikrant Dubey
(principal borrower) is clarified, to which no satisfactory response was
furnished. Despite the said communication, respondent-Bank proceeded
to issue the letter dated 15.04.2026 for recovery of a sum of 10,000/-
₹
per month from the salary of the petitioners.
9. The short proposition which falls for consideration by this Court is
‘as to whether the creditor is obliged to exhaust remedies against the
principal borrower before proceeding against the guarantor, and whether
the liability of the guarantor is co-extensive with that of the principal
borrower, so as to render them jointly and severally liable.’

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WRIC No. - 6410 of 2026
10. The answer to the aforesaid proposition is clearly borne out from a
plain reading of the language provided under Section 128 of the Indian
Contract Act, 1872, which inter-alia reads as under:
“128. Surety’s liability. —The liability of the surety is co-
extensive with that of the principal debtor, unless it is
otherwise provided by the contract.
Illustration: A guarantees to B the payment of a bill of
exchange by C, the acceptor. The bill is dishonoured by C.
A is liable, not only for the amount of the bill, but also for
any interest and charges which may have become due on
it. ”
Bare perusal of the expression “co-extensive” clearly denotes that
the quantum of the guarantor’s obligation is the same as that of the
principal borrower. The guarantor is liable for the whole of the amount
for which the principal borrower is liable, and his liability is neither
more nor less, unless the contract of guarantee provides otherwise. The
liability is joint and several; the creditor is entitled to proceed against
either or both simultaneously.
11. The aforesaid principle has been authoritatively settled by the
Hon’ble Supreme Court time and again in a plethora of judgments. In the
case of Bank of Bihar Ltd. v. Dr. Damodar Prasad and Anr., reported
in AIR 1969 SC 297; the Apex Court held that a creditor is not bound to
exhaust his remedy against the principal debtor before suing the surety.
The Court observed that the very object of the guarantee is defeated if
the creditor is asked to postpone his remedies against the surety until he
has exhausted his remedies against the principal borrower. The direction
of the Trial Court requiring the bank to proceed first against the principal
borrower was set aside in that case.
12. It has to be well ingrained in mind that the surety has no right to
dictate terms to the creditor or to insist upon any particular sequence of
recovery. This principle was reiterated by the hon’ble Supreme Court in
the case of State Bank of India v. M/s Indexport Registered & Ors.,
reported in (1992) 3 SCC 159 : AIR 1992 SC 1740; wherein it was held

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WRIC No. - 6410 of 2026
that the decree-holder bank can execute the decree against the guarantor
without proceeding against the principal borrower. The liability of the
guarantor is co-extensive with that of the principal debtor, and there is no
hierarchy of remedies that the creditor must follow. Furthermore,
hon’ble Supreme Court in the case of Industrial Investment Bank of
India Ltd. v. Biswanath Jhunjhunwala, reported in (2009) 9 SCC 478;
has again affirmed that the liability of the guarantor and the principal
borrower is co-extensive and not in the alternative. The creditor can
proceed against both or either of them. Both the principal borrower and
the guarantor are liable to the creditor at the same time.
13. Therefore, in light of the consistent judicial position, it is
indisputable that the liability of the guarantor is immediate, absolute
(subject only to the terms of the contract), and co-extensive with that of
the principal borrower. The creditor is at liberty to proceed against the
surety without first exhausting remedies against the principal borrower.
Simultaneous recovery is not only permissible but is also in consonance
with the very nature of a contract of guarantee, under Chapter VIII of the
Indian Contract Act, 1872.
14. As far as the reliance of the learned Counsel for the petitioners on
paragraph nos. 10 and 11 of the judgment in the case of Ram Kishun
(supra) is concerned, the same is self-defeating. The paragraphs relied
upon are being quoted herein below, which, according to this Court,
re-affirm the proposition of this Court and defeat the arguments of the
petitioner’s Counsel. The aforesaid paragraphs read as follows:-
“10.  There can be no dispute to the settled legal proposition
of law that in view of the provisions of Section 128 of the
Contract Act, 1872 (hereinafter called “the Contract Act”),
the liability of the guarantor/surety is coextensive with that
of the debtor. Therefore, the creditor has a right to obtain a
decree against the surety and the principal debtor. The
surety has no right to restrain execution of the decree
against him until the creditor has exhausted his remedy
against the principal debtor for the reason that it is the
business of the surety/guarantor to see whether the
principal debtor has paid or not. The surety does not have a
right to dictate terms to the creditor as to how he should

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WRIC No. - 6410 of 2026
make the recovery and pursue his remedies against the
principal debtor at his instance. (Vide Bank of Bihar
Ltd. v. Damodar Prasad [AIR 1969 SC 297] , Maharashtra
SEB v. Official Liquidator [(1982) 3 SCC 358 : AIR 1982
SC 1497] , Union Bank of India v. Manku
Narayana [(1987) 2 SCC 335 : AIR 1987 SC 1078]
and SBI v. Indexport Registered [(1992) 3 SCC 159 : AIR
1992 SC 1740] .)
11.  In SBI   v.   Saksaria Sugar Mills Ltd.   [(1986) 2 SCC 145]
this Court while considering the provisions of Section 128
of the Contract Act held that liability of a surety is
immediate and is not deferred until the creditor exhausts his
remedies against the principal debtor. (See also Industrial
Investment Bank of India Ltd. v. Biswanath
Jhunjhunwala [(2009) 9 SCC 478 : (2009) 3 SCC (Civ)
797] and United Bank of India v. Satyawati
Tondon [(2010) 8 SCC 110 : (2010) 3 SCC (Civ) 260 : AIR
2010 SC 3413] . )”
A plain reading of the aforesaid paragraphs make it crystal clear
that the petitioners, as such, have no right to restrain execution of the
decree against them until the creditor (Bank) has exhausted his remedy
against the principal borrower/debtor for the reason that it is the business
of the petitioners (surety/guarantor) to see whether the principal
borrower/debtor has paid or not and not that of the creditor.
Furthermore, the judgment lays down the ratio that the liability of
the petitioners as a ‘guarantor’ is immediate and is not deferred, until
the creditor exhausts his remedy against the principal borrower.
According to this Court, the judgment relied upon by the petitioners is a
self-goal on the part of the learned Counsel for the petitioners, and
therefore, does not advance the case of the petitioners in any manner
whatsoever.
15. In the present case, the petitioners voluntarily stood as a
‘guarantor’ for the loans advanced to the principal borrower namely,
Vikrant Dubey. No material has been placed on record to show that the
contract of guarantee contained any stipulation postponing the liability
of the guarantor or requiring the creditor to proceed first against the
principal borrower. In the absence of any such contractual restriction, the

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WRIC No. - 6410 of 2026
statutory rule of co-extensive liability under Section 128 of the Indian
Contract Act, 1872 squarely applies. The respondent-Bank is fully
entitled to seek recovery from the petitioner’s salary by way of monthly
deductions. The communication of respondent No. 4 dated 06.03.2026
cannot override the statutory liability or the settled judicial precedents of
the Hon’ble Supreme Court.
16. The contention of the learned Counsel for the petitioners that
principles of natural justice were violated by non-granting of any
opportunity of personal hearing to the petitioners, before the proposal
dated 15.04.2026 is equally untenable. When the liability flows directly
from a contractual guarantee and is co-extensive under Section 128 of
the Indian Contract Act, the petitioners had ample opportunity to
discharge their obligations or to seek appropriate civil remedies; the
present writ petitions cannot be used as a device to defeat the contractual
and statutory liability.
17. It is also well settled that the High Court, in exercise of
jurisdiction under Article 226, does not sit as a Court of appeal over
contractual obligations or interfere with recovery proceedings that are in
accordance with law. The petitioners remain free to pursue their rights of
subrogation or contribution against the principal borrower after
discharging the liability, but they cannot restrain the creditor from
enforcing the guarantee.
18. In view of the aforesaid discussion and reasons, the writ petitions
are devoid of merits. The recovery proposed by the Bank from the salary
of the petitioners at the rate of 10,000/- per month is legally
₹
sustainable.
19. The writ petitions are accordingly dismissed .
20. There shall be no order as to cost(s).
(Abdhesh Kumar Chaudhary, J.) (Shekhar B. Saraf, J.)
August 06, 2026
MVS/-
Digitally signed by :-
MANOJ VIKRAM SINGH CHAUHAN
High Court of Judicature at Allahabad,
Lucknow Bench