1 NMS4885.07.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 4885 OF 2007 IN SUIT NO. 700 OF 2006 Continental Air Services, A Division of M/s. Continental Carries (P) Ltd. ... Plaintiffs. V/s. M/s. Kalyani Exporters & Anr. ... Defendants. Mr. J.M. Chodankar for the Plaintiffs. Mr. Santosh Mishra i/b. M/s. Singhania & Co. for Defendant 2. None for Defendant No.1. CORAM : R.Y. GANOO, J. DATED : 29th SEPTEMBER 2010. P.C. :- The Plaintiffs have instituted this Suit against Defendant Nos.1 and 2 for recovery of Rs.4.00 lakhs and odd amount as stated in the particulars of the claim. Defendant No.2 has taken out this Notice of Motion for rejection of the plaint as per the provisions of Order VII Rule 11 of C.P.C. by contending that no cause of action is made out against Defendant No.2. 2. The Plaintiffs have filed affidavit in reply opposing the Notice of Motion. Rejoinder is also filed. I have heard learned Counsel for the Plaintiffs as well as Defendant No.2. Learned Counsel for Defendant No.2 contended that in averment in the plaint Defendant No.2 is the guarantor on behalf of Defendant No.1 is without any supporting material. He also pointed out 2 NMS4885.07.sxw the averment in paragraph 7 where it is stated that notice dated 27th September 2005 demanding monies as set out in the notice was served upon Defendant No.2. According to learned Counsel for Defendant No.2, a bare averment in the plaint that Defendant No.2 was a guarantor for the acts of Defendant No.1 does not make Defendant No.2 as the guarantor. According to him, it was necessary for the Plaintiffs to plead in the plaint as to how Defendant No.2 can be termed as a guarantor for acts of Defendant No.1. He submitted that the plaint is completely silent as to how Defendant No.2 stood as a guarantor for Defendant No.1. He submitted that the plaint read in the proper context does not make out a cause of action against Defendant No.2. He submitted that the plaint be rejected as against Defendant No.2. 3. Learned Counsel for the Plaintiffs submitted that the averments stated in the plaint are sufficient and submitted that when the notice of demand was sent, the same has not been replied which constitutes a denial and therefore, it is necessary for the Court at the time of trial to go into the question alleged against Defendant No.2 and therefore, the plaint according to him makes out a cause of action against Defendant No.2. He prays for dismissal of the Notice of Motion. 4. I have heard learned Counsels on both sides. A bare averment in the plaint that Defendant No.2 is a guarantor of Defendant No.1 cannot make out the case in favour of the 3 NMS4885.07.sxw Plaintiffs. In order to show that Defendant No.2 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.2 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.2 is a guarantor. Even if it is accepted for the moment that notice was served upon Defendant No.2 and no reply was sent by Defendant No.2 that does not mean that Defendant No.2 can be made liable. A mere averment in the plaint that Defendant No.2 is guarantor is not sufficient. Hence, the plaint does not disclose any cause of action against Defendant No.2. The stand taken by Defendant No.2 is required to be accepted. The plaint is required to be rejected so far as Defendant No.2 is concerned. 5. Hence, following order is passed to dispose of Notice of Motion :- (i) The Motion is made absolute in terms of prayer clause (a). (ii) The plaint stands rejected so far as Defendant No.2 is concerned. (iii) There shall be no order as to costs. (R.Y. GANOO, J.)