RSA No.78/2010 Page 1 of 4 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Judgment: 09.02.2011 + R.S.A.No.78/2010 STATE BANK OF PATIALA ………..Appellant Through: Mr. Narender Pal, Advocate. Versus S.K. MATHUR ……….Respondent Through: Nemo CORAM: HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes INDERMEET KAUR, J. (Oral) This appeal has impugned the judgment and decree dated 08.12.2009 which has endorsed the findings of the trial Judge dated 08.05.2009 wherein the suit filed by the plaintiff i.e State Bank of Patiala seeking recovery against two defendants had been dismissed. 2 The short dispute is as follows:- The plaintiff had filed a recovery suit of Rs.1,56,872.40 paise against two defendants of whom defendant No. 1 was the principal debtor and defendant No. 2 was the guarantor. This was a composite suit which had been filed by the plaintiff against both the defendants. In the course of proceedings, it was brought to notice that defendant No. 1 had expired on 18.10.2005; on 08.02.2007 orders were passed that the suit filed by the plaintiff stands abated qua defendant No. 1. A perusal of the order dated 08.02.2007 shows that this order was passed on the statement made by counsel for defendant No. 2. RSA No.78/2010 Page 2 of 4 3 The question which arose for decision was as to whether the suit has abated as a whole i.e. against defendant No. 2 as well. 4 Section 134 of the Indian Contract Act, 1872 (hereinafter referred to as the „said Act‟) reads as follows:- “134. Discharge of surety by release or discharge of principal debtor.- The surety is discharged by any contract between the creditor and the principal debtor, by which the principal debtor is released or by any act or omission of the creditor, the legal consequence of which is the discharge of the principal debtor.” 4 Trial Judge had relied upon the aforenoted statutory provision to draw a conclusion that the suit stands abated as a whole. 5 This finding was endorsed in appeal. 6 Learned counsel for the appellant has urged that under Section 128 of the said Act, the liability of principal debtor and guarantor is coextensive and even assuming that suit filed by the plaintiff against defendant No. 1 stands abated, the plaintiff has every right to pursue his suit against defendant No. 2; it was an independent right; the guarantor could not be discharged. It is pointed out that this is also evident from the contract between the parties. Counsel for the appellant has placed reliance upon (1978) 48 Comp Cas 459 Prestige Finance P Ltd. (In liquidation) Vs. Balwant Singh & Anr and AIR 2004 SC 3942 Shahazada Bi and others Vs. Halimabi to support this submission. 7 Both these judgments are inapplicable to this factual scenario. In the case of Prestige Finance a claim petition has been filed by the Official Liquidator under Section 446 of the Companies Act, 1956 and on summons being issued, it was noted that Krishan Lal had expired; an application under Order 22 Rule 4 of the Code RSA No.78/2010 Page 3 of 4 of Civil Procedure (hereinafter referred to as the „Code‟) had been preferred by the Official Liquidator; the Court held that the original application had been filed against a dead person; proceedings could not be declared null and void; legal representative could be brought on record under Order 1 Rule 10 of the Code; provisions of Order 22 Rule 4 of the Code would have no application ; the ratio of the said judgment is inapplicable. The second judgment relied upon by learned counsel for the appellant in Shahazada Bi is also distinct on facts. This was a case where a suit for recovery of possession had been filed against tenants in common; each defendant was in separate independent possession of each room; the relief claimed against each of the defendants was divisible and since claim was against each individual defendant, it was held that the death of one defendant would not lead to abatement of the entire suit. 8 The instant is not one such case. Admittedly in this case, a joint claim had been preferred against the two defendants of whom one having died, the suit proceedings stood abated qua him on 08.02.2007. Since the suit proceedings had abated against the principal debtor, the question of continuance of the suit against the guarantor would not arise. Claim against the guarantor was not divisible; it was not an independent claim. Section 134 of the Indian Contract Act was applicable; surety stood discharged. 9 In AIR 1996 SC 1427 Sri Chand Vs. M/s Jagdish Pershad Kishan Chand, the Apex Court had held that no exhaustive statement can be made as to when and under what circumstances the appeal will abate as a whole or it would proceed. The three tests laid down by the Court to determine this read RSA No.78/2010 Page 4 of 4 as follows:- “The courts will not proceed with an appeal (a) when the success of the appeal may lead to the court's coming to a decision which may be in conflict with the decision between the appellant and the deceased respondent and, therefore, it would lead to the court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective that is to say it could not be successfully executed. These three tests, as pointed out by this Court in Sri Chand v. M/s. Jagdish Pershad Kishan Chand MANU/SC/0008/1966 are not cumulative tests. Even if one of them is satisfied, the court may dismiss the appeal.” 10 Applying the first test, it is clear that once the suit had abated against defendant No. 1, the result would be that the suit is dismissed qua him; if the claim is decreed against defendant No. 2 it would be a conflict between the decree of dismissal passed against defendant No. 1 and, therefore, it would lead to the court passing a decree which has even otherwise become final with respect to the same subject matter between the appellant and the deceased defendant no.1. 11 The substantial questions of law have been phrased on page 7 of memo of appeal. No such substantial question of law having arisen. Appeal is dismissed in limine. INDERMEET KAUR, J. FEBRUARY 09, 2011 A