Unilateral variance of public issue terms after successful closure statutorily discharges underwriters’ liability under Section 133.

Tommorrowland Limited (formerly M.S. Shoes East Ltd.) launched a public issue in 1995 which was fully underwritten by 267 entities.

Although initially oversubscribed, SEBI noticed anomalies and directed the issuer to grant investors an option to withdraw.

Consequently, subscription fell below the mandatory 90% threshold.

Tommorrowland issued devolvement notices to underwriters, who failed to pay, leading to a refund of all application money.

After a prolonged procedural history, the Delhi High Court appointed a Sole Arbitrator in 2007, who passed awards in 2012 holding underwriters liable for damages at ₹80 per share plus 18% interest.

In suits under Sections 14 and 17 of the Arbitration Act, 1940, the Single Judge upheld the liability but reduced damages to ₹20 per share and lowered the interest rates.

Both the issuer and various underwriters (HDFC Bank, DCM Financial, etc.) preferred appeals under Section 39 of the 1940 Act.

The court primarily applied Section 39 of the Arbitration Act, 1940, which specifies appealable orders, including those modifying or refusing to set aside an award.

Section 28 of the Arb Act, 1940, empowers courts to enlarge the time for making an award even after it has been made.

Most significantly, the court applied the law of guarantees under Chapter VIII of the Indian Contract Act, 1872 (IC Act).

It relied on Section 126 (definition of guarantee), Section 128 (co-extensive liability), and Section 133, which mandates the discharge of a surety upon any "variance" made without the surety’s consent in the terms of the contract between the principal debtor and the creditor.

It further integrated the principle of strictissimi juris regarding surety bonds, citing State of Maharashtra v. Dr. M.N. Kaul.

The Court determined that the underwriters occupied the legal status of "surety" under Section 126 of the IC Act.

While the Single Judge and Arbitrator focused on the Underwriting Agreement’s machinery clauses, they failed to apply mandatory statutory discharge provisions.

The public issue was successfully closed on February 18, 1995, meaning the contingency for the guarantee (under-subscription) never occurred at the time of closure.

The subsequent act of Tommorrowland—unilaterally allowing subscribers to withdraw applications following SEBI's letter—constituted a "material variance" in the contract between the creditor and principal debtors without the surety's consent.

Under Section 133 of the IC Act, this variance resulted in the automatic and irreversible statutory discharge of the underwriters.

Consequently, the contract of guarantee was extinguished by law before the devolvement notices were issued, rendering all subsequent claims for damages and interest non-est.

The appeals filed by the Underwriters (HDFC Bank, Haryana State Industrial, etc.) were allowed, and the Arbitral Awards and Impugned Judgments fastening liability upon them were set aside.

Consequently, all appeals filed by Tommorrowland Limited seeking higher damages or interest were dismissed as infructuous, as no enforceable liability remained against the respondents.

The Court exercised its powers under Order XLI Rule 33 of the CPC to apply this ruling even to underwriters who had not preferred cross-appeals, ensuring legal consistency.