Q: A and B execute a joint pronote in favour of C . In fact, A executes only as Surety for B and the fact is known as C. C files a suit against A upon the note. Discuss the liability of A ?

Ans: As per Sec. 128 of the Indian Contract Act, 1872, the liability of the Surety is co-extensive with that of the Principal Debtor unless it is otherwise provided for in the contract.

Under the rules regarding the Surety's liability, Sec. 128 states that it is not necessary that the · Creditor must exhaust his remedies against the Principal debtor before proceeding against the Surety. He can straight away sue the Surety without proceeding against the Principal Debtor.

The above point was established under the case law 'Syndicate Bank Vs. A.P. Majunath & another, 1999, CCC, Kar.

In the instant case, C, who is the creditor files a suit only against A, though he is fully aware that the pro-note is a joint one and that A is only acting as a Surety. Going by the above provisions of law, the action of C is quite in order and 'A's liability is co- extensive with that of B.