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Important Points
The liability arises right from the beginning. The surety becomes liable
when the principle debtor commits default in meeting the liability.
Surety has the right to sue the third party (Principle Debtor) directly.
The Law puts him in the position of Creditor. Where as in Contracts of
Indemnity, the Indemnifier cannot sue the third party in his name. He
has to sue in the name of the Indemnity-holder or after obtaining the
rights from him.
Anything done, or any promise made, for the benefit of the principal
debtor, may be a sufficient consideration to the surety for giving the
guarantee. The guarantor need not personally derive any benefit from
the guarantee.
Rights of a surety
As against the Creditor
According to the Indian Contract Act, 1872,
Sec. 133 - The creditor shall not vary terms of the contract between the
creditor and the principal debtor without the surety's consent. Any such
variance discharges the surety as to transactions subsequent to the
variance. However if the variance is for the benefit of the surety or does
not prejudice him or is of an insignificant character, it may not have the
effect of discharging the surety.
Sec. 134 - The creditor should not release the principal debtor from his
liability under the contract. The effect of the discharge of the principal
debtor is to discharge the surety as well. Any act or omission on the part
of the creditor which in law has the effect of discharging the principal
debtor puts an end to the liability of the surety.
Sec. 139 - The surety is discharged if the creditor impairs the surety's
eventual remedy against the principal debtor.
Sec 140 - The surety cannot claim the right of subrogation to the
creditor's securities if he has signed up as a security for a part of the
agreement and security has been held by the creditor for the whole debt.
Ansal Engg. Proj. Ltd. v. Tehri Hydro Development Corp. Ltd. & Anr.
1997 88 CompCas 149 SC
(if no fraud involved, court has no role)
FACTS:
The petitioner/appellant (A) had undertaken to do some construction for the
defendant/respondent(R) and as per the terms of the contract had furnished
a bank guarantee (BG) for faithful performance and for getting mobilisation
advance against the construction contract. The constructions were to be
done within a given time but A failed to do so. R sought to encash the Bank
Guarantee. A resorted to arbitration[1] and while it was pending prayed in
High Court that BG should not be invoked.
CONTENTIONS (Appellant):
1. Since the amount due and payable by A was not determined in the suit,
BG could not be invoked.
2. R had played fraud on A in entering into the contract and seeking
extension of the time. After the promise, to extend time for construction
and extension of BG, the contract was terminated.
ISSUE:
Whether A had made out any case of irreparable injury by proof of special
equity or fraud so as to invoke the jurisdiction of the Court by way of
injunction to restrain R from encashing the bank guarantee?
HELD:
High Court (rejected the contentions, dismissed the petition, answered the
issue in negative)
SUPREME COURT:
K. RAMASWAMY, S.SAGHIR & G.B.PATTANAIK, JJ.)
1. (w.r.t 2nd contention of A) It is not a case of fraud but one of acting in
terms of contract.
2. (w.r.t 1st contention of A) All the clauses of, the contract of the bank
guarantee are to be read together. The Bank unconditionally and
irrevocably promised to pay, on demand, the amount of liability
undertaken in the guarantee without any demur or dispute in terms of the
bank guarantee. Final adjudication is not a pre-condition to invoke the