Dismissed

Smt. Vimlabai Fakirchand Kumar and Anr. v. the Western India Trustee and Executor and Ors.

Bombay HC7 Dec 2005FA/113/1991

Case brief

AI extract

What is this about?

In a first appeal challenging a judgment awarding future mesne profits against sureties in a case initiated without joining the primary debtor, the Bombay High Court found no error in the lower court's view given the absence of evidence and lack of interim relief sought, dismissing the appeal.

What did the court decide?

No order as to costs.

Smt. Vimlabai Fakirchand Kumar and Anr. Vs… — Contract and Commercial Disputes | Bombay HC (2005)

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HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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FIRST APPEAL NO. 113 OF 1991 .

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Smt. Vimalabai Fakirchand Kumar & Anr.

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..Appellants.

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Versus.

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The Western India Trust & Ors. ..Respondents.

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Shri. H. S. Keluskar for Shri. N. V. Walavalkar for the Appellants.

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CORAM: ANOOP V. MOHTA, J.

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DATE : DECEMBER 7, 2005.

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P.C.

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This is a Surety’s First Appeal, whereby

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challenge	has	been	made to	the judgment	and order	dated
13th	October	1989	whereby	the Second	Joint Civil	Judge,
Senior	Division,	Satara	, after	considering	the issues	has
directed	the	Opponent	to pay	the future	mesne profit	at
the	rate of	Rs.500/	- from	28.06.1969 to	7.08.1978.	The

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Court has further directed the opponent to pay Rs.

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52,166/- and passed the consequential orders.

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2.		The	appellants admi	ttedly stood	surety	for
Opponent	No.1,	i.e.,	responde	nt No.2	in	a		proceeding
initiated	by	respondent	No.1.	As	a	condition		precedent
of	depositing	and	furnishing	security	to	the	tune	of

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:2:

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Rs.50,000/by two sureties, each of Rs. 25,000/-, the opponent, i.e., appellant Nos. 1 & 2 stood as sureties as per the directions given by the High Court. The order for determining the future mesne profit was passed in the appeal. Respondent No.1 therefore preferred an application for determining future mesne profits as contemplated under Order -XX Rule 1(c) of the Code of

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Civil Procedure. There is no further dispute that the

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premises in question is a Cinema Theatre.

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The trial Court, therefore, after assessing

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the material on record passed the impugned judgment and

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order and directed the appellants to make the payment.

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None appears for the respondent.

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The Counsel appearing on behalf of the

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appellants basically contended that the liability as awarded should have been firstly executed against the

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main creditor and not against the sureties. However, he

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was unable to support his submission, except the oral arguments. The law is settled to this extent that money

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claim can be executed as per the decree against the

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guarantor or sureties.

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:3:

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In the present case, admittedly, the action

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was	initia	ted	only against	the	appella	nt	being		original
sureties.		There	is noth	ing perv	erse	or	contrary	t	o that
regard	or	born	out from	record.	In	the	absence	of	any
material	e	vidence	led	by the	cont	esting	parties	,	i.e.,
the	Opponent	N	o. 1,	i.e.,	gua	rantor,	the		material
available	on		record justify	the	impugne	d	judgme	nt	and
order.	A	dmittedly,	while	admitting	this	ap	peal	there	was
no	interim	order	sought or	granted	by	this	Court.		There
is	no	further	dispute in	this	matter	th	at the		appellants
remained	ab	sent	and never	entered	into	witne	ss	box	to
oppose	the	cont	ention as	raised.		There	was		nothing
justified	at	a	relevant time	why	the	surety	bond		should
not	be c	ancelled.	In vi	ew of	this	backgr	ound,	there	is

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nothing which need to interfere with the finding given by

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the lower court.

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Taking all this into account, the First Appeal

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is dismissed. No order as to costs.

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(ANNOP V. MOHTA, J.)

Smt. Vimlabai Fakirchand Kumar and Anr. v. the Western India Trustee and Executor and Ors.

Case brief

What is this about?

What did the court decide?

Smt. Vimlabai Fakirchand Kumar and Anr. v. the Western India Trustee and Executor and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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