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Ardeshir Sorabsha Moos Vs. Khushaldas Gokuldas - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal Nos. 15, 177, 178 and 179 of 1907
Judge
Reported in(1908)10BOMLR268
AppellantArdeshir Sorabsha Moos
RespondentKhushaldas Gokuldas
DispositionAppeal dismissed
Excerpt:
.....113, 134-bills of exchange-acceptance by drawee-acceptance taken on copies of bills not a valid acceptance-bills endorsed over to a drawee in case of need-holder in due course-the drawee can maintain the suit without disclosing his principal, as a holder in due course-bills accepted need not be dishonoured and protested-liability of acceptor at maturity of the bills-assent not signed on bills but on copies-assent not valid.;the plaintiff sued to recover on certain bills drawn on the defendant and endorsed over to the plaintiff, the defendant having failed to pay them. in one of the suits, the acceptance by the defendant was signed upon the original bill but in others it was merely on copies of the bills. the lower appellate court threw out the first suit on the grounds that the..........at the maturity of the bills. section 115 has no bearing upon this point, but merely enacts that a bill is not dishonoured until it has been dishonoured by the drawee in case of need where such a drawee is named in the bill. it was suggested that presentment would be necessary to charge the acceptor, but that is clearly not so, and section 64 provides only that the other parties-i.e. the maker and the drawee- are not liable to the holder unless the bill has been presented to the acceptor. the acceptor is the principal debtor, and his liability is independent of presentment.3. no other objection being suggested, it follows that in appeal no. 177, where the plaintiff's acceptance was written on the original bill, the decree of the lower appellate court must be reversed, and the suit.....
Judgment:

Batchelor, J.

1. The appellant in these appeals was the original plaintiff. He sued to recover on certain bills drawn on the defendant and endorsed over to the plaintiff, the defendant having failed to pay the bills. In the first Court three of the suits were dismissed on the ground that the defendant was not an ' acceptor' within the meaning of the Negotiable Instruments Act inasmuch as he had not signed his assent upon the bills. In the fourth suit, there being no room for this objection, a decree was made in the plaintifi's favour. On appeal to the District Judge, all four suits were dismissed on the grounds (i) that the plaintiff was suing as agent for the London firm, Messrs. Fracis, Times and Co., without disclosing his principals so that the suits were defective in form, and (ii) that the suits were not competent as the bills had never been dishonoured and protested. Against these decrees the plaintiff has preferred the present appeals, and the first point taken before us is as to his capacity to sue. This point must, we think, be decided in his favour. The bills were indorsed over to him by the Banks in whose favour they were drawn, so that he was a holder deriving title from the holder in due course; and as such he is competent to sue under Section 53 of the Negotiable Instruments Act.

2. Then it was urged that the learned District Judge was wrong in holding that the suits were bad because the bills had not been dishonoured and protested ; and here again we think that the plaintiff's view must be sustained. The bills were made payable in Bombay, and consequently under Sections 134 and 32 of the Act the acceptor became liable at the maturity of the bills. Section 115 has no bearing upon this point, but merely enacts that a bill is not dishonoured until it has been dishonoured by the drawee in case of need where such a drawee is named in the bill. It was suggested that presentment would be necessary to charge the acceptor, but that is clearly not so, and Section 64 provides only that the other parties-i.e. the maker and the drawee- are not liable to the holder unless the bill has been presented to the acceptor. The acceptor is the principal debtor, and his liability is independent of presentment.

3. No other objection being suggested, it follows that in appeal No. 177, where the plaintiff's acceptance was written on the original bill, the decree of the lower appellate Court must be reversed, and the suit decreed with costs throughout.

4. In the remaining appeals the acceptance was written on copies of the bills, and that, we think, is fatal to the plaintiff's cause. Some attempt to escape this result was made by Mr. Raikes but the language of the Act is too plain to be mistaken. It is enough to say that where as Section 7 of the Act lays down that the acceptance shall be signed either upon the bill or upon one of its parts, the plaintiff's assent was signed only upon copies of the bills ; and thus a material requirement of the law was omitted with the result that there was no valid acceptance.

5. Finally it was urged on behalf of the plaintiff that there is evidence to indicate that some Banks are in the habit of forwarding for acceptance copies of bills instead of the bills themselves. That perhaps is so ; but certainly there are not before us any materials on which we could accept as proved any such custom as the law would recognise, and this suffices to dispose of the contention as it arises in these appeals. That being so, the further question which would arise upon due proof of a custom fulfilling legal requirements in respect of universality, constancy and so forth-the question namely, whether such custom could override the provisions of the Act-is a point upon which, since it cannot now arise, we must rigidly abstain from giving any opinion.

6. The appeals Nos. 15, 178 and 179 must be dismissed, and the appellant must pay the costs of them.


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