At the time of signing of the hire purchase agreement, the appellant herein stood as guarantor as per the deed of guarantee dated 7th June, 1983.
By virtue of this agreement, the private limited companypany became the hirer and Rajiv Jain and Ajit Prasad Jain became the first and the second surety respectively.
Meerut belonging to the appellant was mentioned.
The appellant herein was admittedly number a director of the companypany and his name does number find mention in the certificate of recovery.
Thereupon, respondent No.l filed a suit in the Delhi High Court for recovery of Rs.54,15,001.04 p. with future interest and possession of the machinery and mandatory injunction.
The said companypany failed to make the payments as companytemplated by the agreement.
It is the inclusion of this immovable property in the recovery certificate which was challenged by the appellant before the High Court.
Briefly stated the facts are that the appellants son, Rajiv Jain entered into a hire purchase agreement with respondent No.l whereby, the said respondent financed a business venture of his proprietorship companycern M s. S.R.S. Sunfix Company.
While the companypany through its managing director was arrayed as defendant No.l, Rajiv Jain and Ajit Prasad Jain were impleaded as defendants Nos.
Hence, this appeal by special leave.
The companysent to the new entity taking over the business of the proprietorship companycern was given by respondent No.l and a new agreement was entered into.
They also happened to be directors of the private limited companypany.
This apart, even in the certificate of recovery which as sent by respondent No.l to the companylector, Meerut, the arrears were stated to be due from Rajiv Jain and Ajit Prasad Jain in the capacity as guarantors apart from the companypany and its directors.
2 and 3 in their capacity as guarantors.
2 and 3, being sureties, executed fresh agreement.
The amount for which the decree had been passed was set out in the certificate, The name, of the grantee was mentioned as well as the names and addresses of the guarantors.
Rajiv Jain and Ajit Prasad Jain were impleaded as defendants primarily on the ground that they were guarantors under the fresh agreement dated 2nd April, 1986.
Respondent No.l then forwarded a certificate of recovery under the U.P. Public Moneys Recovery of Dues Act, 1972 to the companylector, Meerut.
The High Court, however, dismissed the writ petition.
The appellant, who was number a party to the suit, was number mentioned in the certificate of recovery.
It is on the basis of this agreement dated 2nd April, 1986 that the suit was filed which was decreed on 12th September, 1996.
These two persons stood as guarantors under this agreement and they undertook due performance of this agreement and to pay the installments of hire and insurance etc.
The unsuccessful challenge of the appellant before the High Court was to the proposal of respondent No.1 to the attachment of house No.l91 A, Saket, Meerut belonging to him for the realisation of the amounts due to respondent No.l.
There Is numberreference in the plaint to the earlier deed of guarantee dated 7th June, 1983 executed by the appellant number is there any prayer in the plaint for a decree against the appellant herein or in respect of the agreement of 1983.
In the plaint, it was slated that respondent No.l had agreed to the change from the proprietorship companycern to the private limited companypany and it is thereupon that defendant No.l and defendant Nos.
Kirpal, J. Special leave granted.
The appellants son then incorporated a private limited companypany called Shiraj Sunfix Company Private Limited and the said companypany took over the business of the proprietorship companycern.
The terms of the original agreement did number permit such a change without the companysent of respondent No.l.
