Judgment :- 1. This civil revision petition is against the order dated 28-4-1989 in O.S. No. 4002 of 1981 on the file of the First Assistant City Civil Court, Madras, on a question of court fee payable on the plaint in the suit. The prayer in the suit is for a declaration that the Bank guarantee for Rs. 2,00,300/- by the second defendant in favour of the first defendant for the due performance of the contract between the plaintiffs and the first defendant, is not enforceable and for consequential reliefs. The suit was valued under S. 25(d) of the Tamil Nadu Court fees and Suits Valuation Act. But, the court below has held that the suit cannot be valued under the abovesaid S 25(d), but should be valued under S. 40 of the said Act since the sum and substance of the prayer is to cancel the said bank guarantee. Against the said decision, the plaintiff has filed this revision. 2. According to Ramaswami v. Rangachariar 1 , and Raja v. Radha Ammal , the sum and substance of the prayer has to be seen and not the mere form of the prayer in the suit, to determine the court fee payable on the plaint. But, where the plaintiff is not a party to the document in question, it has been held that S. 40 of the Court fees Act will not apply, because the word ‘cancellation’ used in S. 40 of the Act implies that the person suing should be a party to the document in question, In the present case, the Bank guarantee was for the benefit of the plaintiff. A Xerox copy of the above said Bank guarantee was shown to me and I find that only the State Bank has sig ned it, Anyway, the contract of guarantee is a tripartite agreement among the principal debtor, creditor and the guarantor as per S. 126 of the Contract Act. It has also been held that the principal debtor need not be expressly made a party in the contract. He can be party by implication also. It has also been held reading Ss. 126 and 145 of the Contract Act, there is no contract of guarantee unless there is privity between principal debtor and the surety. Therefore if the petitioner wants the relief prayed for, he should necessarily set aside the said bank guarantee. He can be party by implication also. It has also been held reading Ss. 126 and 145 of the Contract Act, there is no contract of guarantee unless there is privity between principal debtor and the surety. Therefore if the petitioner wants the relief prayed for, he should necessarily set aside the said bank guarantee. Kalla Surayya and sons v. Provinceof Madras1 , and Sundaramoorthy Mudaliar v. Manickammal 2 and other decisions cited by the learned counsel for the petitioner have no application to the present case. Therefore, the Court fee payable is only under S. 40 of the Act. This civil revision petition is therefore dismissed. No costs.