TEACHING HANDOUT ON RIGHTS OF SURETY

Module 1 By- Akanksha Singh

Assistant Professor (Law)

College Of Legal Studies (UPES)

A. Right Against Principal Debtor

B. Right Against Creditor
C. Right Against Co-Surety

A. Right against Principal Debtor:

1. RIGHT OF SUBROGATION- (sec.140)

(sec.140) Rights of surety on payment or performance:

Where a guaranteed debt has become due, or default of the principal debtor to perform
a guaranteed duty has taken place, the surety, upon payment or performance of all that
he is liable for, is invested with all the rights which the creditor had against the principal
debtor.

Section 140 deals with rights of the surety where surety pays for principal debtor when
guaranteed debt becomes due or principal debtor makes default.

The surety steps into the shoes of the creditor.

This is known as suretys right of subrogation.

2. IMPLIED PROMISE TO INDEMNIFY SURETY- (sec.145)

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, but, no sums which he has paid wrongfully.
 B. Right against Creditor:

1. SURETYS RIGHT TO BENEFIT OF CREDITORS SECURITIES- (sec.141)

A surety is entitled to the benefit of every security which the creditor has against the principal
debtor at the time when the contract of suretyship is entered into, whether the surety knows of
the existence of such security or not; and, if the creditor loses, or, without the consent of the
surety, parts with such security, the surety is discharged to the extent of the value of the
security.

Loss of securities by the creditor results in the discharge of the surety

if however, the securities are lost without any fault of the creditor, the surety is not
discharged.
Surety has no right to those securities which the creditor obtained after making the
contract of guarantee.

C. Right against Co-Surety:

1. CO-SURETIES LIABLE TO CONTRIBUTE EQUALLY- (sec.146)

Where two or more persons are co-sureties for the same debt or duty, either jointly or severally,
and whether under the same or different contracts, and whether with or without the knowledge of
each other, the co-sureties, in the absence of any contract to the contrary, are liable, as
between themselves, to pay each an equal share of the whole debt, or of that part of it which
remains unpaid by the principal debtor.

It is the duty of co-sureties to contribute equally.

They should be co-sureties for the same debt or duty.

It is immaterial-

That whether they have undertaken the guarantee either jointly or severally.
Under the same or different contracts.
With or without knowledge of each other.
 A, B and C are sureties to D for the sum of 3,000 rupees lent to
E. E makes default in payment. A, B and C are liable, as
between themselves, to pay 1,000 rupees each.
A, B and C are sureties to D for the sum of 1,000 rupees lent to
E, and there is a contract between A, B and C that A is to be
responsible to the extent of one-quarter, B to the extent of
one-quarter, and C to the extent of one-half. E makes default in
payment. As between the sureties, A is liable to pay 250
rupees, B 250 rupees, and C 500 rupees.

Contribution:

Sometimes one of the co-sureties may have paid more than his
share of liability to the creditor. Then, in such a case he can claim
contribution from his co-sureties.

A, B and C are co-sureties to D for Rs. 1000 lent to E. By a contract

between them they decide that for this debt the liability of A, B and
C shall be Rs.250, Rs.250 and Rs.500 respectively. E makes a
default. D recovers the whole of Rs. 1000 from A. A can claim
contribution of Rs.250 from B and Rs.500 from C.

2. LIABILITY OF CO-SURETIES BOUND IN DIFFERENT SUMS- (sec147)

Co-sureties who are bound in different sums are liable to pay equally as far as the limits of
their respective obligations permit.

a. A, B and C, as sureties for D, enter into three several bonds, each in a different
penalty, namely, A in the penalty of 10,000 rupees, B in that of 20,000 rupees, C
in that of 40,000 rupees, conditioned for D's duly accounting to E. D makes
default to the extent of 30,000 rupees. A, B and C are liable to pay 10,000
rupees.

b. A, B and C, as sureties for D, enter into three several bonds, each in a different
penalty, namely, A in the penalty of 10,000 rupees, B in that of 20,000 rupees, C
in that of 40,000 rupees, conditioned for D's duly accounting to E. D makes
default to the extent of 40,000 rupees. A is liable to pay 10,000 rupees, and B
and C 15,000 rupees each.