The following Judgment of the Court w-as delivered:
S.B. Majmudar, J.
This appeal on the grant of special leave to appeal under Article 136 of the Constitution of India brings in challenge the judgment and decree passed by Division Bench of the Andhra Pradesh High Court at Hyderabad whereby respondent no. 1’s suit against the appellant-insurance company, which was defendant no.1 in the suit came to be decreed. In order to appreciate the grievance of the appellant against the impugned decree a few background facts deserve to be noted at the outset. We shall refer to the appellant as defendant no.1 respondent no.1 as the plaintiff and respondent no.2 as defendant no.2 in the latter part of this judgment.
The plaintiff filed a suit for recovery of Rs. 1,25,000/- against both the defendants in the Court of Subordinate Judge, Kakinada, East Godavari District in the State of Andhra Pradesh. The plaintiff’s case is that by a Deed dated 23rd April 1971 (Annexure A-2) entered into between the plaintiff and defendant no.2, the 2nd defendant agreed and undertook to pay to the plaintiff a sum of Rs. 168,499.32 being the amount settled to be due to the plaintiff. The 2nd defendant also agreed to furnish a guarantee bond from the 1st defendant-insurance company for the due payment of Rs. 1,68,499.32. Accordingly at the request of the 2nd defendant the 1st defendant agreed to execute a guarantee bond in favour of the plaintiff for the said amount of Rs. 1,25,000/-. The 1st defendant executed a guarantee bond dated 26th April 1971(Annexure A-1) in favour of the plaintiff by and under which the 1st defendant agreed and undertook to pay to the plaintiff at Kakinada the said sum of Rs. 1,25,000/- or such lesser amount as may be demanded by the plaintiff on failure of the 2nd defendant to fulfil the terms of the agreement dated 23rd April 1971 (Annexure A-2). It is the further case of the plaintiff that the first defendant also unconditionally and irrevocably agreed that the payment due under the guarantee bond, will be made to the plaintiff within ten days after the receipt of a written notice of demand from the plaintiff and without reference to the 2nd defendant. The plaintiff contended that the said guarantee bond provided that it will be valid for a period of one year thereof. The plaintiff contended that as the 2nd defendant failed to perform the terms of the agreement (Annexure A-2) the plaintiff demanded that guarantee amount of Rs. 1,25,000- from the 1st defendant by registered notice dated 27th March 1972. As it was not complied with, the plaintiff filed the aforesaid suit against both the defendants.
The 2nd defendant remained ex parte and did not file any written statement. But the 1st defendant insurance company, appellant herein, filed written insurance company, appellant herein, filed written statement contending that it was not at any agreement dated 23rd April 19/1 (Annexure A2) said to have been entered into between the plaintiff and 2nd defendant under which the 2nd defendant agreed and undertook to pay to the plaintiff a sum of Rs. 1,88,499.32 as being the amount settled to be due to the plaintiff. The plaintiff and the 2nd defendant represented that the plaintiff was a wholesaler for the sale of nylon yarn and fishing requisite and that he appointed the 2nd defendant as dealer for the sale of nylon yarn and the fishing requisite and that in connection with credit facilities that were being given by the plaintiff to the 2nd defendant the 1st defendant might give a guarantee for the said sum of Rs. 1,25,000/- in respect of the faithful performance of the said dealership. Based on the said representations of the said dealership. Based on the said representations of the plaintiff and the 2nd defendant, the 1st defendant executed a guarantee bond in favour of the plaintiff in a sum of Rs. 1,25,000/- for the sale of nylon yarn and fishing requisite etc. The 1st defendant never agreed to furnish any guarantee to the plain in respect of any amount that had been settled to be due to the plaintiff on dissolution of their partnership. The allegation that the 2nd defendant agreed to furnish an insurance guarantee bond for the due amount of Rs. 1,25,000/- from out of Rs. 1,68,489,32 from the 1st defendant and at the respect of the 2nd defendant the 1st defendant agreed to execute a guarantee bond in favour of the plaintiff for the sum of Rs. 1,25,000/- was therefore not true. The 1st defendant executed a guarantee bond in favour of the plaintiff for a sum of Rs. 25,000/- in case the 2nd defendant does not account to the plaintiff in respect of the sale of nylon yarn and the fishing requisites etc. that have been entrusted to him by the plaintiff to be sold. The allegation that the 1st defendant executed a guarantee bond under which it agreed to pay Rs. 1,25,000/to the plaintiff at Kakinada or such lesser amount as may be demanded by the plaintiff on failure of the 2nd defendant was not true.
In view of the aforesaid stand taken by the appellantdefendant no.1 insurance company the learned Trial Judge framed relevant issued and came to the conclusion that the plaintiff claim could succeed only against defendant no.2 who had not contested the suit, but so far as defendant no.1, the appellant herein, was concerned as it had not executed any guarantee in favour of the plaintiff in connection with the agreement or Dissolution Deed dated 23rd April 1971 Annexure A-2, the suit was liable to fail against defendant no.1- insurance company. The plaintiff carried the matter in appeal and by the impugned judgment a Division Bench of the High Court took the view that in substance the surety bond Annexure A-1 sought to cover the liability undertaken by the Dissolution Deed dated 23rd April 1971 and as that liability was not discharged by defendant no.2 the plaintiff was entitled to decree also against defendant no.1 the guarantor insurance company and accordingly decreed the suit also against defendant no.1. As noted above the said decree against defendant no.1 has resulted in this appeal by the said defendant no.1 insurance company.
We have heard learned counsel for the parties and have gone through the relevant evidence on record. The only short point for the determination in this appeal is as to whether defendant no.1 insurance company’s predecessor insurance company, namely, Howrah Insurance Company had entered into any agreement of guarantee for covering the liability of defendant no.2 arising out of the suit agreement dated 23rd April 1971 Annexure A-2. For deciding this point in issue the express written terms of the surety bond Annexure A-1 will have to be a bank guarantee is given the bank which gives the guarantee is given the bank which gives the guarantee would be liable to fulfil its obligations flowing from the terms of the guarantee and the court would not interfere with such obligations flowing from the bank guarantee executed by the concerned guarantor. In this connection a catena of decision have been rendered by this Court. We may only refer to a few of them. In U.P. Cooperative Federation Ltd. v. Singh Consultants and Engineers (P) Ltd. (1980) 1 SCC 174 Sabyasachi Mukharji, J speaking for a two member Bench of this Court has made the following pertinent observations in this connection :
"Commitments of banks must be
honored free from interference by
the courts. An irrevocable
commitment either in the form of
confirmed bank guarantee or
irrevocable letter of credit cannot
be interfered with. IN order to
restrain letter of credit or of
confirmed letter of credit or of
bank guarantee, there should be
serious dispute and there should be
good prima facie case of fraud and
special equities in the form of
preventing irretrievable injustice
purpose of bank guarantees would be
negatived and the fabric of trading
operation will get jeopardised.
Upon bank guarantee resolves many
of the internal trade ad
transactions in a country."
Similar view is taken by a three member Bench of this Court in the case of General Technical Services Company Inc. v. M/s Puni Song (P) Ltd. AIR 1991 SC (994). We may also refer in this connection to recent decision of this Court in the case of Hindustan Ship Workers Construction Ltd. v. G.S. Atwal & Co. (Engineers) Pvt. Ltd. (1995) 9 SCC 76 wherein Paripoornan, J. speaking for a two member of Bench of this Court has observed that in the case of confirmed bank guarantees/irrevocable letter of credit, the Court will not interfere with the same unless there is fraud irretrievable damages are involved in the case and fraud has to be an established fraud.
In the light of the aforesaid settled legal position we will have to see whether defendant no.1 had given any guarantee to meet the liability of defendant no.2 qua the plaintiff arising from the Deed of Dissolution dated 23rd April 1971 Annexure A-2. If such a guarantee is called out from the express language of the guarantee bond Annexure A-1 then obviously the plaintiff can succeed in the absence of any fraud being alleged to have perpetrated on the insurance company by the plaintiff and/or defendant no. 2 qua the said guarantee bond. No such fraud had been pleaded by defendant no. 1-insurance company. But its defence is to the effect that the insurance company-defendant no.1 had never agreed to give any guarantee for meeting the liability of defendant no.2 qua the plaintiff as flowing from the Dissolution Deed dated 23rd April 1971. That contention has to be appreciated in the light of the express language of the guarantee bond Annexure a-1. It is obvious that when such guarantee bonds are reduced to writing the express terms of this writing containing the guarantee bond would be the repository of the obligations of the guarantor flowing the surety bond. As per Sections 91 and 92 of the Indian Evidence Act no evidence de hors the terms of the agreement, to get out of the express terms thereof. Whether the express terms of the guarantee bond give rise to the contract of guarantee sought to be enforced will be the only limited enquiry which could be gone into by the courts while deciding the rights and obligations flowing from such contract of guarantee which is a tripartite contract between the creditor, principal debtor and the surety. Once such suretyship agreement is established on the clear terms of the bond then as laid down by the aforesaid decision of this Court no latitude can be given to the contracting party, namely, the surety or even the principal debtor to enable them to get out of the obligations of the suretyship agreement flowing from such contract, except in exceptional circumstances as indicated in these decisions.
Keeping this settled legal position in view we, therefore, have to see whether the guarantee bond Annexure A-1 covers the obligations of defendant no.2 qua the plaintiff as flowing from the Dissolution Deed Annexure a-2. The plaintiff seeks to rope in defendant no.1-insurance company only on the basis of such obligation of defendant no.2 flowing from Annexure-2 does not cover such liability there will be no contract of guarantee for covering such an obligation between the parties and hence the plaintiff’s suit would be required to be dismissed as was done by the Trial Court. On the other hand if the guarantee bond Annexure A-1 on its express terms creates a suretyship contract on the part of the insurance company and constitutes it as guarantor for discharging liability of defendant no.2 qua the plaintiff pursuant to the Dissolution Deed Annexure A-2 then obviously the plaintiff would be entitled to the decree on the basis of the said contract of guarantee even against the appellant-insurance company as held by the High Court. In this connection, therefore, we have to keep in juxtaposition the guarantee bond Annexure A1 with the Deed of Dissolution Annexure A-2 with a view to finding out whether there is any nexus or connection between the two as alleged by the plaintiff. Relevant recital of the guarantee bond Annexure A-1 dated 26th April 1971 read as under :
KAKINADA, hereinafter called the
Dealer have entered into an
agreement Dt. 23rd April 1971 with
KAKINADA, hereinafter referred to
as Sri Kusumanchi Kameshwara Rao
for the sale of Nylon & Fishing
requisite etc.
AND WHEREAS UNDER the terms and
conditions of the aforesaid
agreement the Dealer has agreed to
furnish to Sri Kusumanchi Kameswara
Rao Insurance Guarantee for Rs.
FIVE THOUSAND ONLY) for faithful
performance of the said Agreement.
LIMITED to execute a guarantee as
above, which the said HOWRAH
agreed to do on certain terms and
conditions.
NOW, THEREFORE, in consideration of
the agreement ad at the request of
(Dealer), We, HOWRAH INSURANCE
COMPANY LIMITED do hereby agree and
undertake to pay to Sri Kusumanchi
Kameshwara Rao at Kakinada a sum of
Rs.1,25,000/- (Rupees ONE LAKH
TWENTY FIVE THOUSAND only) or such
less amount as may be demanded by
Kusumanchi Kameswara Rao, Kakinada
on the failure of the Dealer to
perform faithfully all or any terms
and conditions of aforesaid
agreement.
irrevocably that payment due
hereunder will be made to
Kusumanchi Kameshwara Rao by us
within Ten days after receipt of a
Written notice of demand from
Kusumanchi Kameswara Rao
notwithstanding dispute or disputes
if any, between Kusumanchi
Kameshwara Rao and the Dealer,
without denur and without any
reference to THE said Dealer.
period of one year from the date
hereafter."
A mere look at the aforesaid surety bond shows that the predecessor-in-interest of the appellant-insurance company, namely, Howrah Insurance Company Limited had guaranteed to pay on behalf of defendant no.2 an amount of Rs.1,25,000/and towards the sale price of the said commodities agreed to be sold on credit the defendant commodities agreed to be sold on credit the defendant no.2 as purchaser had undertaken a liability to pay to the extent of Rs. 1,25,00/to the plaintiff and if that liability was not discharged by defendant no.2 the guarantor insurance company had to make good the said liability on behalf of defendant no.2 in favour of the plaintiff. Thus on the express terms of this document the contract of continuing guarantee undertaken by the insurance company in favour of the plaintiff was in connection with the goods, namely, nylon yarn and fishing requisites which were to be sold on credit by the plaintiff to dealer of those goods, namely, defendant no.2 and that guarantee was continued up to the limited amount of Rs. 1,25,000/- and it was to enure for one year meaning thereby that from 26th April 1971 for a period of one year if nylon yarn and fishing requisites etc. were sold by the plaintiff to defendant no.2 on credit, the insurance company as guarantor was to make good the liability of unpaid purchase price thereof incurred by defendant no.2 to the extent of Rs. 1,25,000/- in favour of the plaintiff if the sale price to that extent was not made good in the first instance by defendant no.2 On the express terms of this surety bond, therefore, it must be held that it was to operate in future for guaranteeing the payment of sale price of nylon yarn and fishing requisites which might be sold by THE plaintiff on credit to defendant no.2 within that period and to the extent of Rs. 1,25,000/- of such unpaid and to the extent of insurance company had agreed to stand as defendant no.2 the insurance company had agreed to stand as guarantor. It is no doubt true that this guarantee bond refers to an agreement dated 23rd April 1971 but that agreement is stated to be the agreement between the dealer-defendant no.2 and the plaintiff in connection with sale of nylon yarn and fishing requisites on credit. It is upon by the plaintiff for foisting the liability on defendant no.1 insurance company pursuant to the said document. On the contrary it is the case of the plaintiff that the insurance company had agreed to underwrite liability of defendant no.2 flowing from an entirely different agreement dated 23rd April 1971 regarding dissolution of their partnership, Annexure A-2 which is purported to be executed on that day between the plaintiff on the one hand the defendant no.2 on the other. When we turn to Annexure A-2 we find that it is entirely a different document. It is a Deed of Dissolution between the partners for dissolution of partnership. It recites that this Dissolution Deed was made on 23rd day of April 1971 between plaintiff and defendant no.2. The relevant recitals of this document deserve to be noted at this stage. The read as under :
"1. Whereas the party number one,
Gannavarapu Subbarao is the
working partner and whereas the
party number two Kusumanchi
Kameshwara Rao is the financing
partner in the partnership firm
called M/s Sri Guarantee and Co.,
Kakinada and whereas the parties
hereto hereby declare that the said
partnership between them carried on
under the name and style of M/s Sri
Satyanrayana and Company under the
deed of partnership dt. 1.10.1968
be dissolved from 1.4.1971 and
whereas the party number two
Kusumanchi Kameshwara Rao has to
get from the firm a sum of Rs.
1,68,499.32 P6 (Rupees one Lakh
Sixty Eight Thousand Four Hundred
and Ninety Nine and Paise Thirty
Two only) towards the amount that
was invested by him and whereas the
party number one Ganavarapu
Subbarao has agreed to pay the said
amount and retain the said
partnership firm for himself and
whereas the party number two
Kusumanchi Kameswara Rao on the
other hand is willing to retire
from the firm after taking the
said amount of Rs. 1,68,499.32 from
the party number one Sri
Gannavarapu Subbarao and the said
partnership dated 1.10.1968 carried
on under the name and style of Sri
Guarantee and Company shall be
deemed to have been dissolved by
mutual consent as and from 1.4.1971
and the said business shall
henceforth be carried on by the
said party number one Gannavarapu
Subba Rao under the same name, as
Sri Guarantee and Co., as a sole-
proprietor.
2. The said amount of Rs.
1,68,499.32 ps. agreed to be paid
by the party number one Sri
Ganaavarapu Subbarao was paid by
the said Gannavarapu Subbarao to
Sri Kusumanch Kameswara Rao by
furnishing Howrah Insurance Company
Guarantee Bond for a sum of Rs.
1,25,000/- (One Lakh Twenty Five
Thousand Rupees) and by executing
two pronotes one for Rs. 25,000/-
(Twenty five thousand rupees) and
for another Rs. 15,000/- (fifteen
thousand rupees) with different
sureties for the said two pronotes
along him and by creating mortgages
on the properties of the said
sureties according to law and by
paying cash of Rs. 3,499.32 ps. The
said party number one Gannavarapu
Subbarao further undertakes to pay
interest at the rate of one per
cent mensem on the said insurance
guarantee bond amount of Rs.
1,25,00/- or the balance that may
be outstanding after deducting the
payments made if any on the first
every month to party number two the
said Kusumanchi Kameswara Rao.
Whereas the said Kusumanchi
Kameswara Rao assigns to the party
number one Gannavarapu Subbarao all
that the money and the interest of
the said party number two, the said
Sri Kusumanchi Kameswara Rao in the
said partnership firm Sri Guarantee
and Company, Kakinada and the
business, the goodwill property
assets and liabilities book debts
and the outstanding payable and
the other debts ad the partnership
outstanding against other persons
to hold the same to the said party
number one Sri Gannavarapu Subbarao
absolutely. All the moneys payable
to the said Sri Kusumanchi
Kameshwara Rao, the party number
two by the party number one Sri
Gannavarapu Subbarao shall be
supported by receipts and payments
made without receipts shall not be
valid and shall not be
countenanced."
[Emphasis supplied]
The aforesaid recitals in this Dissolution Deed make an interest in reading. As seen from these recitals especially found in paragraph 2 of the agreement Annexure A-2 it becomes clear that on 23rd April 1971 defendant no.2 was alleged to have paid to the plaintiff towards the sum of Rs. 1,68,499.32 an amount of Rs. 1,25,000/- by way of guarantee bond furnished by Howrah Insurance Company. When we turn to the guarantee bond Annexure A-1 we find that it was executed not on 23rd April 1971 but on 26th April 1971. It, therefore, becomes highly doubtful whether the Dissolution Deed said to the day on 23rd April 1971 if at all there was any connection between the guarantee bond Annexure A-1 and Deed of Dissolution Annexure A-2. Not only that but the further recitals in paragraph 2 of the Dissolution Deed Annexure A-2 show that two promissory notes seem to have been got executed from defendant no.2 by the plaintiff and mortgages were also executed on the properties of sureties in connection with those promissory notes. Neither the promissory notes are on record, nor the mortgages are on record. Therefore, it appears highly doubtful whether the Deed of Dissolution Annexure A-2 was at all in existence on 23rd April 1971. It appears to be a highly suspicious and spurious document. But leaving aside that aspect of the matter on the express language of the surety bond Annexure A-1 no doubt is left in our minds that the appellant-insurance company or its predecessor had never entered into any surety bond as per Annexure A-1 dated 26th April 1971 for bond as per Annexure A-1 dated 26th April 1971 for securing the payment of Rs. 1,25,000/- in favour of the plaintiff in connection with the amount found due from defendant no.2 at the foot of partnership account. There is no whisper about such liability in the guarantee bond Annexure A-1. Therefore, the agreement dated 23rd April 1971 referred to in the surety bond necessarily has no nexus or connection with the Dissolution Deed Annexure A-2. It is not the case of the plaintiff that any other document of 23rd April 1971 seen with a view to finding out whether any such guarantee was ever given by appellant-defendant no.1 in favour of the plaintiff. On the express terms of the guarantee bond Annexure A-1 it must be held that it had nothing to do with the liability of defendant no.2 under Dissolution Deed Annexure A-2 and that liability was not secured and no guarantee was given by Howrah Insurance Company qua that liability of defendant no.2 pursuant to the said bond. The learned judges of the High Court had placed great reliance on the circumstance that the insurance company had not produced any other agreement dated 23rd April 1971 if that was relied upon for giving the guarantee. it is difficult to appreciate this line of reasoning. When the guarantee bond is reduced into writing the terms of the guarantee bond will govern the question as to whether the surety had given a guarantee as culled out from the said document. If the plaintiff wanted to show that there was any other guarantee given by defendant no.1 de hors this surety bond it was for the plaintiff to produce such a document which the plaintiff failed to do. Even that apart such an effort on the part of the plaintiff would not have been permissible in law as the terms of the guarantee bond would govern the rights obligations of the parties flowing from the contract of guarantee and any oral or documentary evidence would not be admissible to vary the terms of this written document as seen earlier. The learned counsel for the appellant, however, vehemently submitted that to the suit notice given by the plaintiff to defendant no.1 no stand was taken by the appellant in its reply that it had not entered into any such agreement. Strictly speaking such notice correspondence would not be much relevant for deciding the moot question whether there was any contract of guarantee between the parties for covering the transaction in question when the document itself is available record. However even if we turn to the plaintiff’s advocate’s notice dated 27th March 1972 on which strong reliance was placed by learned counsel for the plaintiff we find that all that was stated in that notice was to the effect that the appellant had executed an agreement dated 23rd April 1971 in favour of the plaintiff whereby they had undertook to pay to his client at Kakinada a sum or Rs. 1,25,000/- (One Lakh and Twenty Five Thousand Rupees) or such less amount as may be demanded by his client on the failure of the dealer, Sri Guarantee and Company, Kakinada to perform all or any of the terms and conditions of the agreement dated 23.4.1971 entered into between his client and the said company. The reply of the insurance company dated 4th May 1972 advised the plaintiff to exhaust all means of recovery from no.2 according to the agreement. However it is pertinent to note that even in the suit notice given by the plaintiff to defendant no.1 the emphasis is on the agreement of dealership by which defendant no.2 as a dealer was under an obligation to perform the terms and conditions of the agreement. Nowhere it is stated that defendant no.2 as retiring partner had undertaken liability under the Dissolution Deed to pay the amount falling due to the plaintiff from Deed to pay the amount falling due the plaintiff from defendant no.2 when the firm was dissolved. As by Annexure A-1 the insurance company had already undertaken liability to pay the unpaid sale price of the goods sold by the plaintiff to the defendant no.2 dealer it is obvious that in reply to the notice the appellant would rely upon the very same terms and conditions of the surety bond Annexure A-1. Therefore, it could not be said that the said reply to the notice implied any admission on the part of the appellant that it had given guarantee to pay up the dues of defendant no.2 on the guarantee to pay up the dues of defendant no.2 on the basis of the Dissolution Deed Annexure A-2. The learned counsel for the respondentplaintiff would have been on a firmer ground if the notice had recited that the insurance company had undertaken the liability to pay Rs. 1,25,000/- which were payable on dissolution of partnership between the plaintiff and defendant no.2 and despite such recitals in the notice the insurance company had not objected. Besides such an tempt company had not objected. Besides such an attempt remain impermissible in law as express terms of the bond could not be varied by any oral or documentary evidence could not be varied by any oral or documentary evidence to the contrary. In any case as there was no allegation in the notice itself connecting it with the liability of defendant no.2 flowing from the Dissolution Deed Annexure a-2 there was no occasion for the appellant to deny its obligation as surety qua such a liability. Similarly Annexure B-1, a guarantee bond executed by defendant no.2 in favour of defendant no.1 on which reliance was placed by learned advocate for the plaintiff also is of no avail to enable the plaintiff to get out of the express terms of surety bond Annexure A-1. As discussed above it is found that appellant-insurance company or its predecessor had not given any guarantee to cover the liability of defendant no.2 to the extent of Rs. 1,25,000/flowing from Dissolution Deed Annexure A-2. The guarantee given was for entirely a different transaction, that is for securing the payment of unpaid price of goods to be sold on credit by the plaintiff to dealer defendant no.2 over a course of period and the guarantee was to continue for such future period upto one year. It is not the case of the plaintiff that defendant no.2 had during that period failed to pay purchase price of the goods, namely nylon yarn and fishing requisites. Nor has the plaintiff invoked suretyship agreement in that connection. The invoked suretyship agreement in that connection. The suit is based on entirely a different alleged guarantee said to have been given by the insurance company to cover the liability of defendant no.2 flowing from Dissolution Deed. For such an obligation of defendant no.2 flowing from Annexure A-2 there is no contract o guarantee at all given by defendant no.1. In short on guarantee at all given by defendant no.1. In short on the basis of the surety bond Annexure A-1 no liability can be foisted on the appellant to meet the obligation of defendant no.2 flowing from the Dissolution Deed Annexure A-2. As the saying goes i.e., if there is no root where is the question of having branches. Consequently it is not possible to agree with the finding of the High Court as recorded at page 37 of the impugned judgment to the effect that the agreement mentioned in para 1 of Ex. A-1 has reference to Ex. A-2 agreement executed between 2nd defendant and the plaintiff and that the parties understood the Dissolution Deed Ex.A-2 dated 23rd April 1971 as being in the nature of sale of nylon yarn and fishing requisites in favour of defendant no.2 represented by G. Subbara, the other partner. This finding flies in the face of the express terms of the guarantee bond Annexure A-1 and with respect amounts to re-writing the guarantee bond itself. Such a new guarantee bond cannot be culled out from the language of Annexure A-1. Such an exercise is totally impermissible on the facts and circumstances of the case.
For all these reasons, therefore, the appeal is allowed. The judgment and decree passed by the Division Bench of the High Court against the appellant are quashed and set aside and the suit of the plaintiff quashed and set aside and the suit of the plaintiff against the appellantdefendant no.1 is dismissed and the decree of dismissal of the suit against defendant no.1 as passed by the Trial Court is restored. Pending this appeal by an order dated 23rd November 1984 this Court had ordered that the amount already deposited by the appellant in the Trial Court shall be paid to the First Respondent on security being furnished by the said Respondent to the satisfaction of the Trial Court for repayment of the amount to the appellant in the event of the appeal being allowed by this Court. As the appeal is allowed it is directed that if the first respondent plaintiff has withdrawn the deposited amount from the Trial Court on furnishing security to the satisfaction of the Trial Court then first respondent-plaintiff shall refund the said amount to the appellant-insurance company will be entitled to withdraw the said amount along with the total accrued interest on such invested amount. In the facts and circumstances of the case there will be no order as to costs. Orders accordingly.