TMI Blog1981 (11) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Nos. 2, 3 and 4 in their personal capacity for due repayment of the money, which the defendant No. 1 owed to the plaintiff bank. On 15th December, 1951 M/s. Mehra Brothers Private Ltd. was wound up and the Court Liquidator was appointed Official Liquidator to represent the said Company in liquidation. Leave was obtained on the 7th November, 1960 to proceed against the Company in liquidation and the other defendants for recovery of the Bank's dues. 2. Thereafter an application was made by the Plaintiff-Bank for leave to file its claim before the Official Liquidator and by an order dt. the 4th May, 1956 the Official Liquidator was directed to adjudicate upon the debt payable by the Company (in liquidation) to the Bank. 3. It appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is otherwise provided by the contract clause. He also craved reference to a case in which it was held that under the Contract Act, by virtue of Section 128 surety's liability is co-extensive with that of the principal debtor and where there is an application by the principal debtor under Section 6 of the Registration for Relief of Agricultural Indebtness Act, 1957 for scaling down his decretal liabilities, it was held that by virtue of Section 126 of the Contract Act, surety was entitled to the benefit of the outcome of the application under Section 6 of the Act of 1957, and where the principal debtor's liability was diminished in appeal, surety's liability was also diminished in like proportion. Mr. D' Rose referred to Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the principal debtor and his liability to pay the debt is not absolved by creditor's omission to sue the principal debtor as a creditor is not bound to exhaust his remedy against the principal before suing the surety and a suit may be maintained against the surety, though the principal has not been sued. 8. In the case it has been held that a suit to enforce a contract of guarantee can succeed even if the plaintiff has not ex-hausted his remedies against the principal debtor. In the case it has been held that under Section 128, save as provided in the Contract, the liability of the surety is co-extensive with that of the principal debtor. The surety thus becomes liable to pay the entire amount. His liability is immediate. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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