Smt. Suman Singh @ Suman Rawani vs Raj Wardhan Singh
2021 Latest Caselaw 2296 Chatt

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                                                                           NAFR
             HIGH COURT OF CHHATTISGARH, BILASPUR
                             WP227 No. 295 of 2021
      Smt. Suman Singh @ Suman Rawani, W/o Shri Sunil Singh, Aged About
       50 Years, Occupation - Advocacy, R/o- Deviganj Road, Infront of Street
       of Yashoda Lodge, City Ambikapur, Post Offie G.P.O. Ambikapur, P.S.
       and Tahsil Ambikapur, District Surguja, Chhattisgarh., District : Surguja
       (Ambikapur), Chhattisgarh (Resp. No.2)
                                                                   ---- Petitioner
                                     Versus
     1. Raj Wardhan Singh S/o Late Nar Narayan Singh, Aged About 50 Years,
        Occupation - Advocacy, R/o Deviganj Road, Behind Jaiswal Chitra
        Mandir, City Ambikapur, Post Office G.P.O. Ambikapur, P.S. and Tahsil-
        Ambikapur, District Surguja, Chhattisgarh., District : Surguja
        (Ambikapur), Chhattisgarh (Applicant No.1)
     2. Smt. Sandhya Singh W/o Shri Raj Wardhan Singh, Aged About 46 Years
        Occupation - Housewife, R/o Deviganj Road, Behind Jaiswal Chitra
        Mandir, City Ambikapur, Post Office G.P.O. Ambikapur, P.S. and Tahsil
        Ambikapur, District Surguja, Chhattisgarh., District : Surguja
        (Ambikapur), Chhattisgarh (Applicant No.2)
     3. Sunil Singh S/o Shri R.P. Singh, Aged About 51 Years, Occupation -
        Business (Property Dealer), R/o Deviganj Road, Infront of Street of
        Yashoda Lodge, City Ambikapur, Post Office G.P.O. Ambikapur, P.S. and
        Tahsil Ambikapur, District- Surguja, Chhattisgarh., District : Surguja
        (Ambikapur), Chhattisgarh (Res No.1)
                                                               ---- Respondents

For Petitioner - Shri Neeraj Mehta, Advocate.

For Respondents No.1 and 2 - Shri A.K. Prasad, Advocate.

Hon'ble Shri Justice Rajendra Chandra Singh Samant Order on Board 13-09-2021

1. This petition has been brought being aggrieved by the order dated 02-

02-2021 passed by the First Additional District Judge, Ambikapur, District

Surguja, Chhattisgarh by which the application filed by the petitioner under

Order 1 Rule 10 of the CPC praying for deletion of her name from the suit was

dismissed.

2. It is submitted by learned counsel for the petitioner that respondent No.1

and 2 have filed a civil suit praying for recovery of amount of Rs.33,50,000/-

against respondent No.3 and the petitioner. The agreement for loan transaction

was between the respondent No.3 as one party and respondents No.1 and 2

as the second party in which clearly the petitioner was not a party to the

agreement, therefore, her impleadment as a party in the civil suit is without any

basis. It is also submitted that in case the respondent No.1 and 2 succeed in

the civil suit, effective decree can be passed against respondent No.3 alone.

Hence, the impugned order passed is erroneous, illegal and unsustainable.

3. Learned counsel for respondents No.1 and 2 opposes the submissions

and submits that it is clearly pleaded in the plaint that the petitioner/defendant

No.2 had orally guaranteed the repayment of loan which was advanced to

respondent No.3 under the agreement, therefore, she is a necessary party.

Reliance has been placed on the judgment of Hon'ble the Supreme

Court in the case of Gurmit Singh Bhatia Vs. Kiran Kant Robinson and

others, (2020) 13 SCC 773. It is submitted that the plaintiff is dominus litis and

he has right to implead necessary and proper party.

4. Considered on the submissions. On perusal of the pleadings in the

plaint copy of which is attached with this petition, it is found pleaded that the

petitioner/defendant No.2 had given assurance and guarantee that in case of

default of repayment of the loan by respondent No.3, she will take the

responsibility of making repayment of the loan.

5. Section 126 of the Indian Contract Act, 1872 provides as follows:-

"126 'Contract of guarantee', 'surety', 'principal debtor' and

'creditor' - A 'contract of guarantee' is a contract to perform the

promise, or discharge the liability, of a third person in case of his default.

The person who gives the guarantee is called the 'surety'; the person in

respect of whose default the guarantee is given is called the 'principal

debtor', and the person to whom the guarantee is given is called the

'creditor'. A guarantee may be either oral or written."

6. The provision is very clear on this point that a contract of guarantee may

be either oral or written. According to the plaintiffs' case, the petitioner has

given oral guarantee for the repayment of the loan, on this basis and on the

basis of the pleadings that are present in the plaint, the petitioner appears to

be a necessary party in this case. Hence, I am of this view that the trial Court

has not committed any error in passing the impugned order. Therefore, this

petition is dismissed and disposed off.

Sd/-

(Rajendra Chandra Singh Samant) Judge Aadil