( 1 ) THESE are applications (IA 8793/97 and IA 8794/97) filed by applicant/ defendant No. 2 under Order 39 Rule 4 read with Section 151 of the Code of Civil Procedure (in short code of Civil Procedure ) for vacation of injunction granted by this Court on 24. 7. 1997 and under Order 1 Rule 10 read with Section 151 Code of Civil Procedure for deleting the name of defendant No. 2.

( 2 ) MR. S C Aggarwal, learned counsel appearing for the applicant/defendant No. 2, has contended that the transaction was between the plaintiff and defendant Nos. 1 and 3 and defendant No. 2 cannot be held liable to make the payment of any amount as no personal guarantee was ever executed by the defendant No. 2. Mr. Aggarwal has contended that the suit is based on invoices and letters exchanged between the plaintiff and defendant Nos. 1 and 3, which are limited companies and as such in the absence of any guarantee held out by the defendant No. 2 for payment of any amount, defendant No. 2 is neither a proper nor a necessary party. Mr. Aggarwal has further contended that property bearing No. 35, Anand Lok, New Delhi is an ancestral property of the defendant No. 2 and Mr. Sushil Kumar, the brother of defendant No. 2, who has got 50% share in the property. Mr. Aggarwal has also contended that this said property is a residential property owned by the defendant No. 2 along with his brother and no injunction in respect of same can be granted by this Court. In support of his contentions, he has cited S C Jain Vs. Union of India AIR 1983 Delhi 367.

( 3 ) NEXT argument of learned counsel for the applicant/defendant No. 2 canvassed before this Court, was that in terms of sub-rule (2) of Rule 1 of Order XXXVII of the Code of Civil Procedure, the guarantee appearing in sub-rule (2) (b) (iii) has to be read as written guarantee. As there is no written guarantee by defendant No. 2, defendant No. 2 ought not to have been impleaded as defendant. He has further contended that suit under Order XXXVII will not lie against the defendant No. 2. What Mr. Aggarwal has contended is that in such a case it is general provision of law regarding suit for recovery would be applicable and no summary procedure as postulated under Order XXXVII can be invoked against defendant no. 2.

( 4 ) ALTERNATIVELY, Mr. Aggarwal has contended that even otherwise, no prima facie case has been made out for grant of injunction regarding 35, Anand Lok, New Delhi, as nowhere in the plaint it has been pleaded that on which date, to whom and at what place the alleged guarantee was given by defendant No. 2 to the plaintiff. Mr. Aggarwal has contended that it was only for the first time on 29. 1. 1997 when a notice was issued by the Lawyer of the plaintiff, a story of personal guarantee was cooked up. Had there been any guarantee by defendant No. 2, plaintiff would have invoked that guarantee much earlier and not even a single letter to that effect has been written and placed on record by the plaintiff.

( 5 ) NEXT submission of the learned counsel for the applicant/defendant No. 2 was that what is stated in sub-clause (iii) of sub-rule (b) of Rule (2) of Order XXXVII of the Code of Civil Procedure is a guarantee and not indemnity. Mr. Aggarwal has contended that in order to have a contract of guarantee there has to be a tripartite contract between the parties and as there is no tripartite contract between the parties, it can at best be an indemnity and for indemnity no suit under Order XXXVII of the Code of Civil Procedure would lie. In support of his contentions, he has relied upon Ramchandra B. Loyalka Vs. Shapurji N. Bhownagree AIR 1940 Bom 315. Mr. Aggarwal has further contended that in the pleadings, nowhere the plaintiff has pleaded any fraud and, therefore, the plaintiff cannot be allowed to argue that there is any fraud, which has been committed by defendant No. 2 in the absence of any pleading on the subject.

( 6 ) IN reply to the submissions made by the learned counsel for th