41Rights and remedies of person entitled to benefit of guarantee

41 Rights and remedies of person entitled to benefit of guarantee

41 Rights and remedies of person entitled to benefit of guarantee

(1) Notwithstanding anything in this Act or in the Moratorium Act 1930, or any Act amending the same contained, where any person has before the commencement of this Act guaranteed the payment of any money or the performance or observance of any obligation, and such payment, performance, or observance, or such guarantee was or is secured by a mortgage of land, the person entitled to the benefit of the guarantee may give to the guarantor not less than three calendar months’ notice of his intention to exercise all or any of his rights, powers, and remedies against the guarantor or against any property mortgaged by the guarantor to secure the guarantee, and after the expiration of the said period of notice the person entitled to the benefit of the guarantee may, subject to the provisions of this section, exercise such of the said rights, powers, and remedies against the guarantor and against any property mortgaged by the guarantor to secure the performance of the guarantee as he would have been entitled to exercise if this Act, and the said Act as amended, had not been passed.

(1A) Money payable by a purchaser to a vendor under a contract for the sale of land for or on account of the purchase price thereof and interest thereon shall for the purposes of this section be and be deemed always to have been money the payment whereof is secured by a mortgage of land.

(2) Any guarantor who has been given any such notice may within the time limited by the notice apply to the Supreme Court for an order under this section.

Notice of the application shall be given in the manner prescribed by rules of court to the person entitled to the benefit of the guarantee, to any co-guarantor, and to the principal debtor or person the performance or observance of whose obligation the guarantor has guaranteed.

(3) The provisions of section thirty of this Act relating to the exercise of the jurisdiction shall so far as applicable extend to any proceeding under this section.

(4) On any such application the court, if satisfied that the exercise by the person entitled to the benefit of the guarantee of such rights, powers, or remedies, or any of them, would inflict great hardship on the guarantor by reason of the operation of this Act or of any Act by this Act repealed upon his property or investments, or upon the realisation thereof, or by reason of the operation of the Farmers’ Relief Act 1932, on any remedy of the guarantor against the principal debtor or by reason of the conduct of the mortgagee or any receiver appointed by him in or about the realisation of the mortgaged property, or by reason of any other cause whatsoever which such court in the circumstances of the case deems sufficient, may in its discretion, if in all the circumstances it thinks it desirable so to do, order that the exercise of such rights, powers, and remedies, or any of them, be deferred for such time and upon such conditions as such court shall determine or order that such conditions as such court thinks fit be imposed on the exercise of such rights, powers, or remedies, or any of them.