KULATHUNGAL AUTOMOBILIES Vs. MULAMOOTTIL CONSUMER CREDITS LTD

JUDGEMENT

(1.) In the instant case, various loans were provided to a group of people separately, based on a general contract of indemnity/guarantee/surety. On default of repayment of the amount so advanced, the creditor sued against the indemnifier without the juncture of principal debtors and it has resulted in a decree against the indemnifier/defendant, hence this appeal.

(2.) The learned counsel appearing for the respondent Adv.Sri.Paul Jacob advanced extensive arguments pertaining to the application of Order I Rule 10 C.P.C. and the expression "necessary party" and relied on the decisions rendered in (i) Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited & Ors [(2020) 7 SCC 417], (ii) Kasturi v. Iyyamperumal & Ors [(2005) 6 SCC 733] (iii) State Bank of India v. M/s Indexport Registered & Ors [(1992) 3 SCC 159], (iv) Bank of Bihar Ltd. v. Dr. Damodar Prasad & Anr. [AIR 1969 SC 297] (v) SKS Power Generation (Chattisgarh) Ltd. v. Canara Bank [2021 SCC OnLine Bom 1835 (High Court of Bombay)] (vi) Tom Thomas Olassayil & Anr. v. State Bank of India & Ors. [2016 SCC OnLine Ker 28198 (High Court of Kerala)](vii) Tom Thomas & Anr. v. SBI & Ors [SLP (C) No.179/2017 (order dtd. 27/3/2017)] (viii) SICOM Ltd. v. Balkrishna & Ors [2005 (2) Mh.L.J.(High Court of Bombay)] and (ix) Subramania Aiyar v. Gopala Aiyar & Ors [1909 SCC OnLine Mad. 80 (High Court of Madras)].

(3.) The principal debtors were not impleaded in the suit on the reason that by that time, the amount due became time barred as against the principal debtor. Thereon, based on the contract of indemnity executed by the defendant, a suit was filed for recovery of the said time barred debt against the guarantor claiming that the guarantee is a continuing guarantee and hence there is no question of limitation as against the guarantor/indemnifier.