Insolvency does not bar a guarantee suit where no insolvent property is involved, and a frivolous defence justifies judgment.

A money recovery suit on deeds of guarantee was held to continue despite the defendants being adjudged insolvent during the pendency of the proceedings, because the claim did not concern any property of the insolvent and the official assignee was not a necessary party. In a summary suit, the defence to the summons for judgment disclosed no substantial or triable issue, as liability under the settlement and guarantees was admitted and the objections were found frivolous. Leave to defend was therefore refused and judgment followed forthwith in favour of the plaintiff, with costs and execution directions.

---

---

Issues: (i) Whether the suit could proceed and a decree be passed after the defendants were adjudged insolvent during the pendency of the suit and the official assignee had to be impleaded; (ii) Whether the defence raised in response to the summons for judgment disclosed any triable issue so as to justify leave to defend.

Issue (i): Whether the suit could proceed and a decree be passed after the defendants were adjudged insolvent during the pendency of the suit and the official assignee had to be impleaded.

Analysis: The suit was for recovery of money on the strength of deeds of guarantee and did not concern any property of the insolvent defendants. A party in insolvency is not a necessary party where the claim does not relate to the insolvent's property. In that situation, adjudication of insolvency during pendency did not bar continuation of the commercial suit or passing of a decree, and the official assignee was not required to be added.

Conclusion: The suit could validly proceed notwithstanding the defendants' insolvency, and impleadment of the official assignee was not necessary.

Issue (ii): Whether the defence raised in response to the summons for judgment disclosed any triable issue so as to justify leave to defend.

Analysis: The defendants did not appear despite opportunities and the material on record showed an admitted liability under the settlement and the guarantees. The objections raised did not disclose any substantial defence or genuine triable issue. In a summary suit, once the defence is found to be frivolous, leave to defend is liable to be refused and judgment may follow forthwith.

Conclusion: Leave to defend was rightly refused and the plaintiff became entitled to judgment forthwith.

Final Conclusion: The commercial summary suit was decreed in favour of the plaintiff, with costs and ancillary directions for execution and refund of court fees.

Ratio Decidendi: In a money suit based on guarantees, a defendant's insolvency during pendency does not require impleadment of the official assignee unless the claim relates to the insolvent's property, and a summary suit may be decreed forthwith where the defence discloses no substantial or triable issue.

---