(a) "The liability of a surety is coextensive with principal debtor, unless it is otherwise provided by the contract." Elucidate…

(a) Coextensive liability of the surety and its discharge

Under s.128 of the Indian Contract Act, 1872, the liability of the surety is coextensive with that of the principal debtor unless the contract provides otherwise. The surety answers for the whole debt with interest and charges, and liability arises on default without the creditor first suing the debtor (Bank of Bihar v Damodar Prasad 1969, Ram Kishun v State of UP 2012). It survives the discharge of the debtor by operation of law, such as winding up (MSEB v Official Liquidator 1982). Under the IBC, a moratorium does not protect a personal guarantor (SBI v V. Ramakrishnan 2018), and a resolution plan does not automatically discharge one (Lalit Kumar Jain 2021). "Unless otherwise provided" lets parties cap the amount, period or transactions covered.

A surety is discharged in these circumstances:

1. Revocation of a continuing guarantee by notice (s.130) or by death of the surety (s.131), only for future transactions.
2. Variance in the terms between creditor and debtor without consent of the surety (s.133).
3. Release or discharge of the principal debtor by contract or by an act or omission of the creditor (s.134).
4. Composition, extension of time or promise not to sue the debtor without assent of the surety (s.135). This does not apply to a contract to give time made with a third person (s.136), mere forbearance to sue (s.137) or release of a co-surety (s.138).
5. Act or omission of the creditor impairing the eventual remedy of the surety (s.139).
6. Loss of security held by the creditor, to the extent of its value (s.141).
7. Invalid guarantee obtained by misrepresentation (s.142) or concealment (s.143), or where a co-surety on whom it was conditional never joins (s.144).

On payment the surety is subrogated to the rights of the creditor (s.140) and may recover from the debtor (s.145).

(b) Abuse of dominance and abusive conduct under the Competition Act, 2002

Section 4(1) forbids any enterprise or group from abusing its dominant position. Dominance itself is lawful. A dominant position is strength in the relevant market that lets an enterprise act independently of competitive forces or affect competitors and consumers in its favour (Explanation (a)). The CCI weighs s.19(4) factors such as market share, size and resources, rivals, vertical integration, consumer dependence, statutory monopoly and entry barriers, within a relevant market fixed under s.19(5)-(7).

Abusive conduct (s.4(2)):

• Exploitative: unfair or discriminatory conditions or prices, including predatory pricing, unless adopted to meet competition (s.4(2)(a)).
• Exclusionary: limiting production or technical development (b), denial of market access (c), tying unrelated obligations (d) and leveraging into another market (e).

Abuse of dominance is the prohibition, and abusive conduct is the list of practices that breach it.

Decisions: Belaire Owners Association v DLF (2011, Rs 630 crore for one-sided buyer terms), Matrimony.com v Google (2018, search bias), Umar Javeed v Google (2022, Rs 1,337.76 crore on Android, largely upheld by the NCLAT in 2023) and CCI v Coal India (SC 2023, applying the Act to public sector monopolies while weighing social obligations).

Remedies: cease-and-desist orders, penalties up to 10% of average turnover, now global turnover after 2023 (s.27), division of the enterprise (s.28), and settlements and commitments (ss.48A-48B). The draft Digital Competition Bill, 2024 proposed ex-ante rules for large digital firms but has not been enacted.

(c) Emergency arbitration in India

An emergency arbitrator is appointed by an arbitral institution within a day or two to grant urgent interim relief, such as freezing assets or preserving evidence, before the tribunal is formed. SIAC, ICC (Art 29), LCIA and Indian institutions such as the MCIA and DIAC provide for it, offering speed, confidentiality and respect for party choice.

Indian law:

• The Arbitration and Conciliation Act, 1996 does not expressly recognise emergency arbitrators. The 246th Law Commission Report (2014) proposed it, but the 2015 Amendment did not adopt it.
• Courts may grant interim measures before, during or after arbitration (s.9, Sundaram Finance v NEPC 1999), but after the tribunal is formed only if s.17 relief is inefficacious (s.9(3)). Tribunal interim measures are enforceable as court orders (s.17).
• ***Amazon.com NV Investment Holdings v Future Retail* (SC 2021):** in an India-seated SIAC arbitration, an emergency award is an order under s.17(1), enforceable under s.17(2), with no appeal under s.37 against its enforcement.
• Foreign-seated emergency orders are not directly enforceable, so parties must seek fresh relief under s.9 (Raffles Design v Educomp 2016, HSBC PI Holdings v Avitel 2014).

The Srikrishna Committee (2017) and the draft Arbitration and Conciliation (Amendment) Bill, 2024, which proposes a new s.9A, would codify recognition. As of 2026 the Bill has not been introduced in Parliament, and it would still not cover foreign-seated orders. Gaps also remain for third parties and ad hoc arbitrations.