Sripatrao Sadashiv Upre vs Shankarrao Sarnaik on 10 April, 1929

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Bombay High Court
Sripatrao Sadashiv Upre vs Shankarrao Sarnaik on 10 April, 1929
Equivalent citations: (1930) 32 BOMLR 207
Author: Mirza
Bench: Mirza


Mirza, J.

1. The plaintiff’ prays for a declaration that the defendant is liable to pay to him such moneys as the plaintiff is liable to pay under or in respect of a decree referred to in the plaint, and certain costs incurred by the plaintiff. The plaintiff further prays that the defendant may be decreed to pay to him the moneys mentioned in the previous prayer, the costs of the suit and interest on judgment.

2. Two preliminary objections have been raised to the suit as framed. It is contended on behalf of the defendant that the plaint discloses no cause of action and that the suit is not maintainable.

3. Prayer (a) of the plaint asks for a declaratory decree. For a declaratory decree to be maintained it must fall within the provisions of Section 42 of the Specific Belief Act. That section provides that any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right. There is no question in this suit as to any legal character or any right as to property. According to the ruling of this High Court in Bai Shri Vaktuba v. Thakore Agarsinghyi Raisinghji (1910) 1. L.R. 34 Bom. 676, s.c. 12 Bom. L.R. 697, the section is exhaustive. Scott C. J. remarks (p. 680):-

It has long been established that the general power vested in the Courts in India under the Civil Procedure Code to entertain all suits of a civil nature excepting suits of which cognizance is barred by any enactment for the time being in force, does not carry with it the general power of making declarations except in so far as such power is expressly conferred by statute.

4. In Ramakrishna v. Narayana (1914) I.L.R. 39 Mad. 80, the High Court of Madras has subscribed to a contrary view holding that Section 42 of the Specific Belief Act is not intended to be exhaustive as regards the circumstances under which declaratory suits can be maintained. The learned Judges, however, state at page 83 of the judgment:-

But we have not been referred to any ease in which any of the High Courts in India has given a declaratory relief in respect of rights arising out of a contract which would affect only the pecuniary relationship between the parties to the contract and we do not think that there are exceptional circumstances in this case to take it out of the ordinary rule.

5. The present case is in respect of alleged rights arising out of a contract and such rights, in my opinion, cannot form the subject-matter of a declaratory suit.

6. Prayer (&) of the plaint is not happily worded. It prays for a decree for moneys which are said to be mentioned in prayer (a). Prayer (a) has mentioned no specific sum and is too vague to be interpreted as meaning that an account is to be taken in order to ascertain in what sum the defendant has become liable to the plaintiff. At the date of the suit the plaintiff had paid no sum under or in respect of the decree referred to in the plaint for which he was claiming to make the defendant liable. Certain execution proceedings in respect of that decree were taken against him and he must or could have known in respect of what specific amount and costs the judgment-creditor was seeking to make him liable. No adequate reason has been shown why the plaintiff has omitted to set out in this prayer the specific sum and costs for which ho was seeking relief against the defendant. The plaintiff is shown to have paid to the judgment-creditor since the filing of the suit sums aggregating Rs. 1125 in full discharge of his own liability in respect of the decretal amount and all subsequent costs. That sum is made up of the item of Rs. 866-11-4 due for costs of execution under and in respect of the decree and about Rs. 225 for interest and costs of the execution proceedings against the plaintiff personally.

7. The defendant is not taken by surprise by the plaintiff’s omission to set out the amount of his claim in the prayer of his plaint. He was well aware prior to the suit that the plaintiff was claiming to be indemnified by the defendant in respect of the costs payable under and in respect of the decree for which the plaintiff was liable. The amount of those costs was ascertained before the filing of the suit and due intimation of what it was, was given to the defendant. After the filing of the suit the defendant’s attorneys have been furnished with particulars of the plaintiff’s claim. Prayer (6) of the plaint may be taken, therefore, to stand for a claim for Rs. 866-11-4, costs of the execution proceedings against the plaintiff and the costs of certain third party notice proceedings instituted between the plaintiff and the defendant, and the plaintiff’s costs of this suit and interest on judgment. The plaintiff in my judgment is entitled to proceed in respect of this prayer of the plaint.

8. It is contended on behalf of the defendant that as at the date of the suit the plaintiff had paid no sum of money under or in respect of the decree the suit is not maintainable. Reliance is placed on Section 145 of the Indian Contract Act which provides that in every contract of guarantee, there is an implied promise by the principal debtor to indemnify the surety, and the surety is entitled to recover from the principal debtor whatever sum. he has rightfully paid under the guarantee. It is contended that payment under the guarantee is a condition precedent to being entitled to recover the amount from the the principal debtor. English decisions have concurred in the proposition that as soon as the obligation to pay becomes absolute a surety has a right in equity to be exonerated by his principal. See Bechervaisa v. Laivis (1872) L.R. 7 C. P. 372, 377. In Ascherson v. Tredegar Dry Dock and Wharf Company, Limited [1909] 2 Ch. 401, 406 Swinfen Redy J, remarks (p. 406):

It has been the law of the Court for very many years that a surety is entitled to come into equity to compel the principal debtor to pay what is due from him, to the intent that the surety may be relieved.

9. He quotes from the remark of the Lord Chancellor in Nisbet v. Smith (1789) 2 Bro. C. C. 578, 582, viz.,
It is clear and never has boon disputed that a surety, generally speaking, may come into this Court, and apply for the purpose of compelling the principal debtor for whom he is surety to pay in the money, and deliver him from the obligation.

10. In British Union and National Insurance Company v. Rawson [1916] 2 Ch. 476, the plaintiff company had recovered judgment against a married woman in respect of unpaid calls on shares against which the defendant had agreed to indemnify her. Not having any separate property she had assigned the benefit of her right of idemnity to the plaintiff company, who, after written notice of the assignment, had sued the defendant for the full amount of their judgment. The Court of Appeal, agreeing with the trial Court (Astbury J.), held that although the married woman had paid nothing, nevertheless she was entitled to have the amount of the calls paid by the defendant either to the plaintiffs or to herself. Warrington L. J.; in the course of his judgment, remarks (p. 487) ‘;

…I think the real answer to the contention is that the measure of the liability of the indemnifier is not the capacity of the idemnified to pay, but his liability to pay. To adapt the words of Sir George Jessal M. R. in Lacey v. Hill (1874) L.R. 18 Eq. 182, 191, the indemnifier is…liable to indemnify to the extant of the liability incurred by the indemnified.

11. In Chiranji Lal v. Naraini (1919) I. L. 41 All. 395 the Allahabad High Court has held that it is not necessary that, before a suit on an indemnity bond can be filed, the plaintiff should have already been compelled to make the payment in respect of which he is seeking to be indemnified. It is sufficient that a decree has been passed against him for such payment. The learned Judges allowed the plaintiff to produce before them a certified copy of the certificate recording payment of the amount of the mortgage decree which was satisfied by them after the institution of the suit, In the circumstances of the case the learned Judges held that the granting of the mortgage decree against the plaintiffs was equivalent to payment.

12. Section 145 of the Indian Contract Act does not in my judge merit debar a surety from making a claim against the principal debtor in cases where he has not made the payment under the guarantee but has become liable only in pcresenti to do so. In the absence of a provision in the statute restricting the claim of a surety against the principal debtor to cases where the surety has already paid the amount, the Court would be at liberty to apply the principle of the English decisions which the Allahabad High Court has already adopted. I hold that the suit is maintainable.

13. I answer the first issue in the affirmative ; my answer to the second issue is: the suit is not maintainable in respect of the declaratory prayer (a), but is maintainable in respect of prayer (6).

14. [His Lordship then dealt with the remaining issues, and passed a decree in favour of the plaintiff for Rs. 866-11-4.]

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