1. This appeal arises out of a suit brought by the plaintiffs under the following circumstances:
2. Some money was due to the plaintiffs by the defendant, in payment of which the defendant sent a hundi to the plaintiffs drawn by Tulshi Ram-Ram Baksh on Bansidhar-Manohar Lal in favour of the defendant. The plaintiffs endorsed the hundi to Raja Ram and Raja Ram endorsed it to Nanak Chand. Nanak Chand lost the hundi. Without taking any steps to obtain a duplicate of it he brought a suit against Raja Ram and recovered the amount from him, his (Nanak Chand's) immediate endorser, Raja
3. Ram in his turn sued the plaintiffs and the plaintiffs had to pay the consideration of the hundi together with costs and damages. The plaintiffs now bring this suit to recover from the defendant the amount that they had to pay to Raja Ram in execution of his decree. The defence raised was that neither the plaintiffs nor the subsequent purchaser of the hundi took proper steps for realising the amount due thereon and it was owing to their negligence and improper proceeding that the money could not be recovered from the drawer. Another plea in defence was that the hundi was not presented to the drawee and, for these two reasons, the defendant could not be made liable. The first Court name to the conclusion that the plaintiffs were not bund to supply information of the loss of the hundi to the drawer and drawee, nor were they bound to ask for a duplicate and that there was nothing which would prevent them from recovering the money. The defendant went up in appeal and the learned Subordinate Judge, finding that it was admitted that the hundi was never dishonoured by the drawee and that the plaintiffs could have called for a duplicate hundi from the drawer under Section 45(a) or have demanded the money from the drawee under Section 81 by giving security, came to the conclusion that, having regard to these facts, the plaintiffs were not entitled to recover the amount from the defendant, the defendant's liability being contingent upon the hundi being dishonoured. He, consequently, dismissed the plaintiffs' claim. The plaintiffs come here in second appeal. Section 35 of the Negotiable Instruments Act is quite dear and it restricts the liability of the endorser to cases where notice of dishonour has been given to him, or, in other words, the fact of the bill of exchange being dishonoured and the intimation thereof to the endorser are conditions precedent to the endorser being made liable thereunder. Mr. P.L. Banerji has contended that he was not suing on the hundi but he was suing for recovery upon a contract for which the consideration had failed. We do not think that he can fall back upon general principles when the case is expressly governed by the provisions of Section 35. moreover, we are not satisfied that the consideration in this case has failed at all. It is admitted that the hundi was never presented to the drawee and, under these circumstances, we cannot assume that the consideration has failed. We, therefore, think that the judgment of the Court below is correct and dismiss the appeal with, costs including in this fees on the higher scale.