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Mapa mental

Co-extensive Liability

Rohit Beerapalli Law of Contracts B.A. LL.B. Student (2nd Year) Inglês

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Co-extensive Liability

  1. Surety is liable for the whole amount for which the principal debtor is liable, and no more.

    • Surety is liable for not only the amount of the loan, but any interest or charges which may be due on it.
      • Maharaja of Benares v. Har Narain Singh
        • Trial court erred in stating that the surety was liable only for principal amount.
      • Hargopal Agarwal v. SBI
        • Where part of the principal has been recovered, liability of the surety goes down as well.
          • Part of the loan was recovered by disposing of some goods owned by the company.
  2. Condition Precedent

    • Partial recognition under Section 144
      • If there is a condition that the creditor shall not act on a guarantee until a co-surety joins, the guarantee is not valid till that person joins.
    • National Provincial Bank of England v. Brackenbury
      • The defendant signed a guarantee that was intended to be a joint and several liability of three other persons with him.
        • One of them did not sign the guarantee, therefore there was no guarantee.
          • Alternately, it would be valid if the bank and sureties had an agreement to dispense with the signature.
  3. No need to exhaust remedies against debtor before proceeding against surety.

    • Bank of Bihar Ltd. v. Damodar Prasad
      • The creditor trying to make the debtor pay would defeat the object of the guarantee.
        • It is the responsibility of the surety to make sure that the principal pays, not the creditor.
    • Union of India v. Manku Narayan
      • Overruled in SBI v. Indexport Registered
        • The decree can be executed, jointly, or severably, against the debtor, mortgaged property, and surety.
          • The decree holder cannot be forced to execute the mortgage decree, and only then proceed on the execution of the personal decree.
      • A creditor must proceed first against the mortgaged property, and only then against the surety.
        • Even if there is a composite decree against the debtor, surety, and mortgaged property.
          • Severability was not considered.
  4. The mortgaged property of the guarantor cannot be taken possession of without notice to him.

    • Amulya Lal v. Tripura Industrial Development Corporation Limited
      • Liability of the guarantor is only secondary. It does not arise until default by the principal-debtor.

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