UDERAM PREMSUKH Vs. SHIVBHAJAN RAMPRATAB

JUDGEMENT

(1.) This is a suit to recover from defendant as surety on a guarantee. The facts are simple and are not in dispute save in one minor particular that is as to the service of notice of demand which point was ultimately abandoned as being immaterial to the result. Those facts are shortly as follows. On May 30th 1917 plaintiffs agreed to buy 100 bales of cotton, April 1918 delivery, at Rs. 406-12-0 from the firm of Balmukund Premsukh Defendant as surety guaranteed the performance of the contract. On February 3rd, 1918, plaintiffs being uneasy as to the financial soundness of Balmukund Premsukh agreed to sell to them 100 bales of the same goods for the same delivery at Rs. 617-8-0. On February 4th Balmukund Premsukh became insolvent. Plaintiffs claim against them has been paid in part by the Official Assignee. In the present suit they seek to recover the balance from defendant. It is admitted that the market rate on the Vaida day was Rs. 712. Plaintiffs put their case alternatively. They say, "Either we are entitled to recover the difference between the rates of the two contracts, or the difference between the rate of the first contract and the rate on the Vaida day."

(2.) A number of defences were suggested in the written statement but these were dropped at the hearing. The defence taken is that defendant is discharged from his suretyship by reason of the second contract between the plaintiffs and the principal debtor.

(3.) The following issues were raised: (1) Whether plaintiffs are entitled to recover Rs. 10507-8-0 from the defendant 1 (2) Whether the. first contract remained outstanding until the duo date as alleged in para 7 of the plaint 1 (3) Whether plaintiffs in the alternative are entitled to claim Rs. 1526 2- 8-0 or any other sum from the defendants ? (4) Whether defendant is not discharged from his suretyship as sot out in para 4 of the written statement ?