INTRODUCTION
In banking recovery litigation, one of the most frequently contested questions is whether a secured creditor can initiate proceedings against a guarantor independently of, or even before, the principal borrower. This issue arises especially in cases where the guarantor has created a security interest in their own assets, while the primary debtor may or may not have done so.
This article examines the legal framework under the SARFAESI Act, 2002, the interplay with the Indian Contract Act, 1872, and key judicial precedents that clarify the rights and remedies of banks, borrowers, and guarantors.
LEGAL FRAMEWORK: SARFAESI ACT AND SECURITY INTEREST
Who is a “Borrower” Under SARFAESI?
Under the SARFAESI Act, a person who creates a security interest in favor of a secured creditor can fall within the definition of a “borrower” for the purposes of enforcement.
Where a guarantor mortgages or otherwise secures their own assets, they assume a status similar to that of a borrower. Consequently, the measures under Section 13(4), such as taking possession of secured assets, sale, or assignment can be invoked against the guarantor’s property.
Issue with Section 13(2) – NPA Classification
A technical difficulty arises due to the language of Section 13(2), which refers to the account of the borrower being classified as a Non-Performing Asset (NPA).
In practice:
- Banks maintain the loan account of the principal borrower, not the guarantor.
- This creates a conceptual mismatch when enforcement is directed at a secured guarantor’s asset.
However, courts have generally treated this as a technical inconsistency, not a substantive bar to proceeding against the guarantor’s secured property.
WHEN THE GUARANTOR ALONE HAS CREATED SECURITY
If the principal borrower has not created any security interest, but the guarantor has, the secured creditor can still invoke Section 13(4) against the guarantor’s secured asset.
The enforceability flows from the existence of a valid security interest, not from who originally received the loan proceeds.
WHEN NO SECURITY IS CREATED BY THE GUARANTOR
Where the guarantor has not created any security interest, the creditor’s claim against the guarantor is purely contractual in nature.
In such cases:
- The claim is for enforcement of a covenant of guarantee.
- It does not fall within the SARFAESI framework.
- The creditor must pursue remedies under civil law or RDB proceedings, not under SARFAESI.
CAN THE BANK PROCEED AGAINST THE GUARANTOR FIRST?
Section 13(11) – Statutory Clarity
A critical provision is Section 13(11) of the SARFAESI Act, which clarifies that:
The secured creditor is not barred from proceeding against any or all of the secured assets, including those provided by the guarantor.
This means that if the guarantee agreement permits, the bank can proceed against the guarantor’s secured property even before enforcing security against the principal borrower’s assets.
RIGHTS OF THE GUARANTOR UNDER THE INDIAN CONTRACT ACT
Section 141 – Benefit of Securities
Section 141 of the Indian Contract Act, 1872 protects the guarantor by providing that:
- A surety is entitled to the benefit of every security held by the creditor against the principal debtor at the time of entering into the contract of guarantee.
- If the creditor loses or parts with such security without the guarantor’s consent, the guarantor is discharged to the extent of the value of that security.
However, courts have consistently held that mere inaction by the bank in not proceeding against the principal borrower’s asset does not amount to “loss of security.”
PRIMARY VS. COLLATERAL SECURITY: NO PRIORITY RULE
Santosh Sheet Pvt. Ltd. v. Syndicate Bank (Allahabad High Court)
The Court clarified that:
- Security interest refers to any right, title, or interest created in favor of a secured creditor over property.
- Collateral security is merely an additional layer of protection.
The secured creditor is not legally bound to exhaust the primary security first before proceeding against collateral or guarantor-provided security.
CO-EXTENSIVE LIABILITY OF GUARANTOR
Punjab National Bank v. Om Educational & Charitable Trust (DRAT)
The DRAT held that:
- The secured creditor cannot be compelled to proceed against the borrower’s property merely because its reserve price is higher.
- There is no legal mandate to recover dues from the principal borrower before initiating action against the guarantor.
The liability of the guarantor is co-extensive with that of the principal debtor, unless the contract of guarantee provides otherwise.
KEY TAKEAWAYS
- A guarantor who creates a security interest can be proceeded against under Section 13(4) of SARFAESI.
- The bank can proceed against the guarantor’s assets even before the borrower’s, if the guarantee permits.
- The guarantor’s liability is co-extensive, not secondary.
- Section 141 of the Contract Act protects guarantors only where the creditor loses or parts with security, not where the creditor merely delays enforcement.
- Joint deposits enjoy special protection and cannot be unilaterally attached.
CONCLUSION
Indian courts and tribunals have consistently reinforced the principle that a secured creditor’s remedies against a guarantor are independent, robust, and enforceable, subject to the terms of the guarantee and statutory safeguards.
For banks, this provides strategic flexibility in recovery. For guarantors, it highlights the serious legal consequences of offering secured guarantees, often placing their personal or business assets on the same footing as the borrower’s.
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