DRAT- R.A. (SA) No.
20 of 2018
S.N Argument of IoB (A)
o
1 Clause 4 of Guarantee Document, R
has declared to not be affected by
Bank taking/giving up or varying any
security;
2 Pari passu charge created is within
terms of contract and is consented to.
3 Novation is permitted; Section 133 is
impliedly waived.
4 Clause 3, R has consented to allow
time, indulgence or compound with
borrower without affecting his
guanrantee
5 Such agreement is not contrary to
provision of law- recent 2020 BHC
judgment confirms this.
6 KHC judgment in 2002 ILR at Pg. 251 is
relied upon to substantiate that such
clause will survive;
7 Sale of property on 20.06.2017
pending proceedings in SA No. 205 of
2016 is untenable.
-06032023-SM-v1
Argument on behalf of Mr. Naveen Kumar(R)
1-Waiver is different from granting of rights. Clause 4 does
not waive operation of S. 133.
-BOI v. Aiyars, Para 71, BHC, 1993: Contracting out of
provision is different.
-Provash SC- Para 24- waiver explained- express,
voluntary and intentional.
-Vijayaraghavan v. IOB, Para 20, MHC- the clause table
ref;
4- Standing consent cannot be ascertained and such clause
is against statutory provision;
-SBI v. Machine well industries Del HC 1980, consent in
advance could not be given in light of Section 133 and
therefore is invalid.
2- Instant variation was more than right given under Cl.4-
new party was lending money to borrower, R resigned as
director, new constitution of board of borrower, therefore,
-Rajan Malhotra, 2019-DHC- similar instance, guarantee
discharged; Cl was similar.
3. Any alteration to contract, whether disadvantageous or
not, discharges surety.
-Perumal Reddiar, 1980, Para 43, MHC;
They have not placed reliance on this.
Clause is a waiver clause in the case referred, ref:Table.