ORDER M. Karpagavinayagam, J. Pradip D. Kothari, the applicant/defendant has filed this application in A.No. 1634 of 2000 seeking to raise the order of furnishing security dated 8-12-1999 passed ex-parte in the application filed by the respondent/plaintiff in A. No. 4236 of 1999 pending disposal of the suit in C.S. No. 594 of 1999. 2. The plaintiff/respondent filed the above suit for recovery of a sum of Rs. 5,45,08,179/together with interest and for consequential orders against the defendant/applicant herein. Pending disposal of the suit, the plaintiff filed A.No. 4236 of 1999 requesting for furnishing security to the suit claim and in default, to order attachment of the petition mentioned property before judgment. 3. On hearing the counsel, this Court passed an ex-parte order on the basis of the materials available on record directing the defendant to furnish security for suit claim within four weeks and ordered notice returnable by then. On service of the notice, the applicant/defendant has filed this application in A.No. 1634 of 2000 on 11-4-2000 requesting to raise the ex-parte order directing furnishing security in the above matter. 4. The case of the plaintiff is as follows :- "Ceat Financial Services Limited, the plaintiff herein entered into a lease agreement on 4-1-1995 with D.C. Kothari Textiles Limited under which the plaintiff leased out plant and machinery valued at Rs. 3.96 crores. The above lease agreement was converted into a Hire Purchase Agreement on 4-7-1995. In consideration of the plaintiff entering into a lease agreement with D.C. Kothari Textiles Limited, Pradip D. Kothari, the defendant executed a Deed of Guarantee on 18-10-1994 in favour of the plaintiff. After the Hire Purchase Agreement, the defendant executed another Deed of Guarantee in favour of the plaintiff on 1-7-1997. Since D.C. Kothari Textiles Limited were irregular in the payment of the hire charges from November 1996 onwards, the plaintiff sent a notice dated 25-2-1998 calling upon D.C. Kothari Textiles Limited to pay the amounts due. Despite receipt of the notice, there was no payment. Therefore, the plaintiff by invoking the personal guarantee of the defendant sent a notice to the defendant calling upon him to pay the amounts due. In spite of receipt of the notice, there was no reply. The plaintiff sent a reminder.on 23-3-1999, but there was no response. Despite receipt of the notice, there was no payment. Therefore, the plaintiff by invoking the personal guarantee of the defendant sent a notice to the defendant calling upon him to pay the amounts due. In spite of receipt of the notice, there was no reply. The plaintiff sent a reminder.on 23-3-1999, but there was no response. The company was found to be in heavy debts and has not settled the dues of the bonded warehouse and even as per its own balance sheet, the outstanding of the Company is around Rs. 35 crores. The plaintiff instituted winding up proceedings against D.C. Kothari Textiles Limited before this Court and the same is pending. Since the defendant executed a guarantee in favour of the plaintiff in respect of the above Hire Purchase Agreement, the plaintiff has instituted this suit for recovery of the above said sum with interest." 5. The case of the defendant challenging the ex-parte order directing to furnish security for the suit claim, as projected in the counter-affidavit filed in A.No. 4236 of 1999 and the affidavit filed in A. No. 1634 of 2000 is as follows : "The above suit filed against the defendant as surety is not maintainable due to the fact that the plaintiff/respondent has not instituted any action against the principal debtor within the limitation period of three years. As the plaintiff has allowed the claim against the principal debtor to get barred by limitation, no claim could lie against the defendant as surety, as the suretyship gets discharged on that account under S. 135 of the Contract Act. The guarantee agreement dated 18-10-1994 and 1-7-1997 executed by the defendant would state that the guarantor shall forthwith pay the plaintiff all the amounts payable by the company only in the event of default on the part of the company in making such payments. The plaintiff had neither substantiated its plea with tangible evidence that the principal debtor has defaulted in its payment nor the plaintiff has sued the principal debtor within the limitation period. Furthermore, the requirements of Order 38, Rule 5, of CPC have not been satisfied in this case. The defendant is not heavily indebted to various creditors and he is not trying to alienate any property as alleged by the plaintiff. It is mandatory on,the part of the plaintiff to specify the property while filing the application for attachment before judgment. Furthermore, the requirements of Order 38, Rule 5, of CPC have not been satisfied in this case. The defendant is not heavily indebted to various creditors and he is not trying to alienate any property as alleged by the plaintiff. It is mandatory on,the part of the plaintiff to specify the property while filing the application for attachment before judgment. Having not done so, the application under Order 38, Rule 5 is not maintainable in law. The plaintiff has not produced any proof that the defendant is about to dispose off any part of this property or to remove the same from the local limits of the jurisdiction of this Court with a view to obstruct the execution of any decree that may be passed against him. Therefore, the order of furnishing security has to be raised and ultimately, A.No. 4236 of 1999 filed by the plaintiff has to be dismissed." 6. I have heard the counsel for the parties and also gone through the records. 7. The counsel for the parties would cite a number of authorities in support of their respective contentions. 8. According to the counsel for the plaintiff, the defendant has executed guarantee agreement both on 18-10-1994 and 1-7-1997 in respect of the transaction mentioned in the suit. He has also mentioned in paragraph 6 of the affidavit as to why he is instituting the suit against the guarantor alone by giving details that the principal debtor, the company is unable to pay its debts to various creditors including the bonded warehouse to the tune of Rs. 35 crores and there is also winding up proceedings against the principal debtor.The counsel for the plaintiff has also produced a copy of the Public Notice in respect of the petition mentioned property advertised in the Hindu dated 24-3-2000. 9. On the other hand, the learned senior Counsel for the defendant would submit that having failed to institute a suit against the principal debtor within the period of limitation, the plaintiff cannot sue against a guarantor and the mandatory requirements as per Order 38, Rule 5, C.P.C. also have not been complied with. 10. On a careful scrutiny of the typed set, affidavits and documents filed by both the parties, I am unable to accept either of the contentions urged by the counsel for the applicant/defendant. 11. 10. On a careful scrutiny of the typed set, affidavits and documents filed by both the parties, I am unable to accept either of the contentions urged by the counsel for the applicant/defendant. 11. There is no dispute in regard to the fact that the guarantee agreement was executed by the defendant on 18-10-1994 and after the conversion into Hire-Purchase Agreement on 1-7-1997. The recitals of the agreement would clearly state that the guarantor shall forthwith pay the plaintiff all the amounts payable to the Company only in the event of default on the part of the Company in making such payments. 12. Clause 7 of the agreement dated 1-7-1997 would give the clear recitals, which are as follows : "In order to give effect to this Guarantee the owner shall be entitled to act as if the guarantor was the principal debtor to the owner for all payment guaranted by them as aforesaid." 13. It is the specific case of the plaintiff that since there was no payment from the principal debtor, the plaintiff sent a notice to the defendant on 9-3-1998 intimating the non-payment of the Company and calling upon him to pay the amounts due. He also sent a reminder on 23-3-1999 to the defendant. Though this notice had been received by the defendant, admittedly, there was no reply. This is not disputed either in the counter-affidavit filed in A. No. 4236 of 1999 or in the affidavit filed in A. No. 1634 of 2000. Thus, it is clear that the terms of the agreement have not been adhered to by the defendant. 14. Under those circumstances, there is no difficulty in holding that the plaintiff could file the suit by acting as if the guarantor was the principal debtor to the owner for all payments guaranteed by the guarantor as provided in clause 7 of the agreement dated 1-7-1997. 15. It is settled law that under Section 128 of the Contract Act, the liability of the surety is coextensive with that of the principal debtor unless it is otherwise provided by the contract. A surety is no doubt discharged under Section 134 of the Act by any contract between the creditor and the principal debtor by which the principal debtor is released or by any act or omission of the creditor, the legal consequence of which is the discharge of the principal debtor. A surety is no doubt discharged under Section 134 of the Act by any contract between the creditor and the principal debtor by which the principal debtor is released or by any act or omission of the creditor, the legal consequence of which is the discharge of the principal debtor. But a discharge which the principal debtor may secure by operation of law in bankruptcy does not absolve the surety of his liability. 16. In view of Section 138 of the Contract Act, if a plaintiff has chosen not to proceed against one or other of the sureties but has chosen to proceed against the rest then the release of the one or the other co-sureties by plaintiff will not free the guarantors so released from his responsibility to the other sureties. 17. Under Section 128, 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 not deferred until the creditor exhausts his remedies against the principal debtor. The surety is the guarantee. It is his business to see whether the principal pays, and not that of creditor. In the absence of some special equity the surety has no right to restrain an action against him by the creditor on the ground that the principal is solvent or that the creditor may have relief against the principal in some other proceedings. 18. It is well established rule that the liability of a guarantor to pay the amount under the guarantee is not at all affected merely because the liability of the principal debtor is suspended. 19. The creditor is entitled to recover the debt from the surety, even though a suit is barred) against the principal debtor. 20. The above principles have been laid down in the following decisions : (1) M.S.E. B., Bombay v. Official Liquidator, H. C., Ernakulam, AIR 1982 SC 1497 ; (2) United Bank of India v. Modern Stores (India) Ltd., AIR 1988 Cal 18 ; (3) Bank of Bihar v. Damodar Prasad, AIR 1969 SC 297 ; (4) S.C.I.L. (India) Ltd. v. Indian Bank, AIR 1992 Bom 131 ; (5) Bombay Dyeing and Manufacturing Co. v. State of Bombay, AIR 1958 SC 328 ; (6) Amrit Lai v. State Bank of Travancore, AIR 1968 SC 1432 ; (7) State Bank of India v. M/s. Saksaria Sugar Mills Ltd., AIR 1986 SC 868 ; (8) M. R. Chakrapani lyengar v. Canara Bank, AIR 1997 Kant 216. 21. That apart, in Mahanth Singh v. U BA YI (1939) 2 MLJ 253 (PC), it has been specifically held as follows : "Similarly, a failure to sue the principal debtor until recovery is barred by the statutes of limitation does not operate as a discharge of the surety in England. See Carter v. Whites, (1883) 25 Ch D 666. The same view prevails in most of the High Courts in India. See Sankana Kalana v. Virupakshapa Ganeshapa, (1883) ILR 7 Bombay 146, Krishto Kishori Chowdhrain v. Radha Romun Munshi, (1885) ILR 12 Cal 330 Subramania Aiyar v. Gopala Aiyar, (1909) 20 MLJ 633 and also Dil Mohammad v, Sain Das, AIR 1927 Lahore 396." 22. In the light of the above legal situation, I am not able to hold that the plaintiff is debarred from filing a suit against the guarantor without impleading the principal debtor, more particularly when the plaintiff has stated both in the plaint as well as in the affidavit as to why he has not proceeded against the principal debtor. 23. Regarding the compliance of the requirements of Order 38, Rule 5, CPC, the learned counsel for the defendant would cite the following authorities : (1) Srinivasan, T. v. V. Srinivasan (1985) 98 Mad LW 78; (2) N. Pappammal v. Chidambaram, AIR 1984 Madras 70; (3) Indian Bank v. S. Krishnaswamy (1989) 2 Mas LW 105; (4) Premraj v. Md. Maneck Gazi, AIR 1951 Cal 156 . 24. Maneck Gazi, AIR 1951 Cal 156 . 24. Order XXXVIII Rule 5 of CPC deals with 'Attachment before Judgment', which reads as follows : "(1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him, (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. (2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof. (3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified. (4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule, such attachment shall be void." 25. The reading of the above provision would make it clear that there are essential requirements which must be proved to the satisfaction of the Court. They are as follows : "(1) The defendant is about to dispose of the whole or any part of his property; or (ii) The defendant is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court; (iii) That the defendant is intending to do so to cause obstruction or delay in the execution of any decree that may be passed against him. Vague and general allegations that the defendant is about to dispose of the property or remove it beyond the jurisdiction of the Court, unsupported by particulars, would not be sufficient compliance with the rule. Vague and general allegations that the defendant is about to dispose of the property or remove it beyond the jurisdiction of the Court, unsupported by particulars, would not be sufficient compliance with the rule. (iv) It is incumbent upon the plaintiff to state the grounds on which he entertains the belief or apprehension that the defendant would dispose of or remove the property, or, to give the source of his information and belief in the matter through an affidavit." 26. In the light of the above principles, if we look at the facts of the case, in my view, the requirements contemplated under Order 38 Rule 5, CPC for directing to furnish security have been satisfied by the respondent/plaintiff herein. 27. As indicated above, there is no dispute about the execution of the two guarantee agreements dated 18-10-1994 and 1-7-1997. It is also agreed that in the event of the non-payment of the due by the principal debtor, the guarantor shall forthwith pay the plaintiff all the amounts payable to the company. It is not debated that the two notices dated 9-3-1998 and 23-3-1999 sent by the plaintiff have not been replied nor any attempt was made to pay the amount by the defendant. 28. There is also specific averment in the affidavit that the defendant as a Director from 1995 has sold at least three estates in order to delay and defeat the interest of the creditors. It is further stated that the defendant has taken loans against his shares and owes the plaintiff company a sum of Rs. 75 lakhs in yet another transaction and the same remains unpaid. It is also stated that the defendant is attempting to alienate his properties and secrete them away from the jurisdiction of this Court. 29. When it is specifically averred in the affidavit that the defendant intends to alienate the petition mentioned property only with an intention to delay the execution of the decree that may be passed against him it is for the defendant to establish that there is no such attempt for alienation. 30. 29. When it is specifically averred in the affidavit that the defendant intends to alienate the petition mentioned property only with an intention to delay the execution of the decree that may be passed against him it is for the defendant to establish that there is no such attempt for alienation. 30. The very fact that the defendant has failed to give at least an undertaking in his counter affidavit that he would not alienate the petition mentioned property and failed to comply with the orders of this Court dated 8-12-1999 directing the defendant to furnish security for the suit claim within four weeks from that date, would clearly show that unless the order for furnishing security passed on 8-12-1999 by this Court is confirmed, as rightly contended by the counsel for the plaintiff, the plaintiff would not be able to get the fruits of the decree that may be ultimately passed against the defendant/guarantor. 31. Furthermore, instead of complying with the order of this Court dated 8-12-1999 by furnishing security for the suit claim within four weeks, the defendant has filed this application belatedly on 11-4-2000, nearly after four months. This would indicate that the order directing the defendant to furnish security for the suit claim should be confirmed. 32. In view of the foregoing discussion in the above paragraph, I am of the view that there is no merit in the points urged in the application in A. No. 1634 of 2000 and the same is liable to be dismissed. Accordingly, A. No. 1634 of 2000 is dismissed and the order passed in A. No. 4236 of 1999 is confirmed. The defendant is directed to furnish security for the suit claim within four weeks from today, failing which the attachment before judgment will be ordered in respect of the petition mentioned property.