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TMI Blog2001 (8) TMI 1248X X X X Extracts X X X X X X X X Extracts X X X X ..... ecovery Tribunal at Mumbai seeking to recover from the official liquidator and the applicants jointly and severally a sum of Rs. 8,20,76,369.27 with interest thereon. According to the first respondent, this was the amount due and payable by the company in liquidation to them. It appears that the official liquidator by his notice of admission of proof dated 14-8-2000 has allowed the applicants claim for the sum of Rs. 4,36,35,454 and since the first respondents having already received an amount of Rs. 3,62,91,150 out of the sale proceeds of the assets of Westerworks Engg. Ltd., a balance amount of Rs. 73,43,304 was payable to the applicant as per the aforesaid notice of admission. It appears that the first respondents have challenged the afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liquidation is based on the securities given by the company in liquidation to the respondent No. 1. 2. Shri Madan, the learned counsel for the applicant herein, on the other hand, submitted that the applicant is vitally affected party as under section 128 of the Indian Contract Act, the liability of the guarantor is co-extensive with the principal debtor. According to him, whatever orders would be passed in the appeal against the adjudication orders of the liquidator, the applicant would be certainly affected. In case the appeal is allowed, the applicant s liability would also be increased. Under the orders of the liquidator, the liability of the applicant is reduced. Shri Tulzapurkar, however, has questioned the validity of the said su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arantor should not be restricted to the amount that the debtor may by operation of law be compellable to pay. The rule applicable to cases of this nature was very clearly enunciated in Fitz George In re : Robson, Ex parte 1905-1 KB 462 (V), where Bigham, J. Says. (p. 464) I think in this case that the creditor is entitled to prove for the value of the guarantee that the debtor has given. It is said that, because the principal debt is gone, therefore, the liability under the guarantee to pay the interest on the debenture is also gone. I do not agree with that view. The principal debt is gone no doubt, but not by any act of the creditor. It is gone by operation of law. The principal debt will never be repaid, but in my opinion, the obl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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