Research › Search › Judgment

Andhra High Court · body

2007 DIGILAW 140 (AP)

P. Venkateshwar v. G. P. R. Chits & Finance Ltd

2007-02-09

C.Y.SOMAYAJULU

body2007
Judgment :- First respondent filed the suit for recovery of money against the respondents 2 to 4 and the revision petitioner, alleging that the revision petitioner stood surety and for the amount due to it by the second respondent, in that suit revision petitioner filed IA No.509 of 2006 to summon the Senior Divisional Manager, Hindusthan Petroleum Corporation, Hyderabad, to produce the records relating to the second respondent (principal debtor) to establish that the second respondent has capacity to repay the amount claimed by the first respondent/plaintiff in the suit. The trial Court dismissed the said petition on the ground that the financial soundness of the principal debtor is not a criteria to be taken into consideration in a suit for recovery of money filed by the creditor against the principal debtor and the sureties. Hence, this revision by the second defendant/surety. 2. The learned counsel for the revision petitioner contends that inasmuch as the revision petitioner is a surety to the transaction, he in order to establish that second respondent/principal debtor has sufficient means to discharge the suit debt wishes to take out summons to the witness as those records would establish his capacity to repay the amount covered by the suit and so the trial Court erred in dismissing the petition. 3. The trial Court in my considered opinion, did not commit an error in dismissing the petition, because the issue to be decided in the suit is whether the revision petitioner is a surety to the transaction and is also liable to pay the amount claimed, or not. The question, whether the principal debtor in the suit has means to pay the amount claimed in the suit or not, is not a relevant issue for disposal of the suit, because question of 'means' of the defendant(s) to repay the amount covered by the suit would be relevant only when the decree is put to execution but not at the time of deciding the suit. If the revision petitioner is a surety to a transaction between the second respondent as principal debtor and the first respondent, as creditor, first respondent has a right to obtain a decree both against the second respondent as principal debtor and against the revision petitioner as surety. If the revision petitioner is a surety to a transaction between the second respondent as principal debtor and the first respondent, as creditor, first respondent has a right to obtain a decree both against the second respondent as principal debtor and against the revision petitioner as surety. On the ground that the principal debtor has sufficient means, to repay the amount claimed in the suit, the court cannot dismiss the suit against a surety, if as per the agreement between the parties the surety also liable to pay the amount due to the plaintiff creditor and so, question whether the second respondent has means to pay the covered amount by the suit or not is wholly irrelevant for disposal of the suit. 4. Therefore, I find no merits in the revision and hence the same is dismissed.