1 NMS4887.07.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 4887 OF 2007 IN SUIT NO. 199 OF 2006 Continental Air Services, A Division of M/s. Continental Carries (P) Ltd. ... Plaintiffs. V/s. M/s. Rachna Udyog (Exports) Pvt. Ltd. & Ors. ... Defendants. Mr. J.M. Chodankar for the Plaintiffs. Mr. G.B. Kedia for Defendant 1. Mr. Santosh Mishra i/b. M/s. Singhania & Co. for Defendant 3. None for Defendant 2. CORAM : R.Y. GANOO, J. DATED : 29th SEPTEMBER 2010. P.C. :- The present Suit is filed by the Plaintiffs for recovery of amounts from the Defendants as set out in the particulars of claim. The Defendants have taken out this Motion for rejection of the plaint so far as Defendant No.3 is concerned on the ground that there is no cause of action against Defendant No.3. 2. Across the bar, learned Counsel for the Plaintiffs submitted that Defendant No.1 had entrusted certain goods to the Plaintiffs for delivery to Defendant No.2 and Defendant No. 2 NMS4887.07.sxw 3 and the goods have been delivered by the Plaintiffs to Defendant No.3. 3. In the plaint, there is a specific averment in paragraph 2 that Defendant No.3 is a guarantor of Defendant No.1. In the plaint, there is also an averment that Advocate’s Notice dated 27th September 2005 was sent to Defendant No.3 and same is returned with remark intimation posted. Learned Counsel for Defendant No.3 contended before this Court that a bare averment in the plaint that Defendant No.3 is a guarantor for the acts of Defendant No.1 cannot be accepted to say that Defendant No.3 could be styled as a guarantor. He submitted that there are no averments explaining as to how Defendant No.3 could be termed as guarantor. He submitted that there are no averments to show that representative of Defendant No.3 orally agreed to act as a guarantor for Defendant No.1. He submitted that there is no documentary evidence produced by the Plaintiff to show that representative of Defendant No.3 agreed to act as a guarantor for acts of Defendant No.1. 4. Learned Counsel for the Plaintiffs submitted that the allegations made in the plaint by which as Defendant No.3 is termed as a guarantor require investigation and therefore, the plaint is required to be entertained by the Court. 5. Learned Counsel for the Plaintiffs had submitted that notice demanding monies was served upon the Defendants 3 NMS4887.07.sxw inasmuch as despite giving intimation by the Postal Department, Defendant No.3 have not collect the same. He submitted that said notice is not replied. Mr. Chodankar submitted that Notice of Motion be dismissed. 6. I have heard learned Counsels on both sides. A bare averment in the plaint that Defendant No.3 is a guarantor of Defendant No.1 cannot make out the case in favour of the Plaintiffs. In order to show that Defendant No.3 is a guarantor, it was necessary for the Plaintiffs to make appropriate averments in the plaint explaining as to what facts constitute relationship between the Plaintiffs and Defendant No.3 as a creditor and as a guarantor respectively. A mere sending of the notice by itself is not sufficient to confirm the averments in the plaint that Defendant No.3 is a guarantor. Even if it is accepted for the moment that notice was served upon Defendant No.3 and no reply was sent by Defendant No.3 that does not mean that Defendant No.3 can be made liable. A mere averment in the plaint that Defendant No.3 is guarantor is not sufficient. Hence, the plaint does not disclose any cause of action against Defendant No.3. The stand taken by Defendant No.3 is required to be accepted. The plaint is required to be rejected so far as Defendant No.3 is concerned. 7. Hence, following order is passed to dispose of Notice of Motion :- 4 NMS4887.07.sxw (i) The Motion is made absolute in terms of prayer clause (a). (ii) The plaint stands rejected so far as Defendant No.3 is concerned. (iii) There shall be no order as to costs. (R.Y. GANOO, J.)