Shyam Jewels, one of Mumbai's biggest jewelry stores, contract with Gold leaf Wholesalers in electronic form. Gold leaf specializes in High-quality Gold and Diamond Jewelry. Under the contract, the gold leaf was supposed

CS Executive · Jurisprudence, Interpretation and General Laws · PYQS · June 2025
Shyam Jewels, one of Mumbai's biggest jewelry stores, contract with Gold leaf Wholesalers in electronic form. Gold leaf specializes in High-quality Gold and Diamond Jewelry. Under the contract, the gold leaf was supposed to provide jewelry amounting to ₹ 25 lakh on credit to Shyam Jewels, with payment due in 90 days. To fulfill this financial obligation, X, the friend of owner of Shyam Jewels, signed a personal guarantee and Y, business partner of Shyam Jewels secured the transaction with a lien on his expensive car. Upon receiving the consignment, Shyam Jewels defaulted on its payment obligations within the stipulated period. Despite multiple legal notices, the payment remained due, which entitles the aggrieved party to compensation for loss or damage caused by this act. As X had provided a personal guarantee, Gold Leaf Wholesalers initiated recovery proceedings against him. There is an agreement in which a surety undertakes liability in the event of the principal debtor's default. Y's luxury car had been pledged as security for the debt. Upon default, Gold Leaf exercised its statutory right, which empowers the Gold Leaf to sell the pledged goods after providing reasonable notice to the Y. The proceeds from the sale were appropriated towards the outstanding liability. During the course of legal proceedings, it was ascertained that Shyam Jewels had engaged A, as an agent to procure jewelry from Gold Leaf. The commercial transaction between Shyam Jewels and Gold Leaf falls within the ambit of the Sale of Goods Act, 1930, as it involved the transfer of ownership of goods in exchange for monetary consideration. In view of the above details, answer the following questions with reasons: Discuss the liability of X, as a guarantor.

Answer & Explanation:

According to Section 128 of the Indian Contract Act, 1872, the liability of the surety is co-extensive with that of the principal debtor, unless the contract provides otherwise. A creditor is not bound to proceed against the principal debtor. He can sue the surety without suing the principal debtor. As soon as the debtor has made default in payment of the debt, the surety is immediately liable. But until default, the creditor cannot call upon the surety to pay. In this sense, the nature of the surety's liability is secondary. Section 128 only explains the quantum of a surety's obligation when terms of the contract do not limit it. Conversely, it does not follow that the surety can never be liable when the principal debtor cannot be held liable. Thus, a surety is not discharged from liability by the mere fact that the contract between the principal debtor and creditor was voidable at the option of the former, and was avoided by the former. Where the agreement between the principal debtor and creditor is void as for example in the case of minority of principal debtor, the surety is liable as a principal debtor; for in such cases the contract of the so-called surety is not collateral, but a principal contract. [ Kashiba v. Shripat (1894) 19 Bom. 697 ]. In view of the above discussion it may be said that the Gold Leaf Wholesalers are legally entitled to initiate recovery proceedings against Mr. X.

Topics: Contract Law

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