1. In support of this second appeal it is urged that the plaintiff (appellant) is entitled to a decree against the 5th defendant (the 1st respondent), firstly, because the 5th defendant has not proved that he suffered any damages for want of notice of dishonour of the bill, secondly, because no notice of dishonour is necessary, since the 5th defendant, the drawer, and the 6th defendant, the drawer and acceptor, are partners, and thirdly, because the 5th defendant received notice of dishonour of the bill by the acceptor, within the# meaning of Section 30 of the Negotiable Instruments Act.
2. The 1st contention is governed by Section 98(c) of the Negotiable Instruments Act which runs as follows--' No notice of dishonour is necessary when the parties charged could not suffer damage for want of notice'. It is clear that the onus is upon the plaintiff who relies upon this exception to the general rule enacted by Section 30,that the drawer of a bill of exchange is bound, in case of dishonour by the drawee or acceptor thereof, to compensate the holder provided due notice of dishonour has been given to or received by the drawer, to establish and prove that the 5th defendant could not have suffered damage by reason of notice not having been given to him of the dishonour of the bill by the 6th defendant Moti Lal v. Moti Lal I.L.R. 6 A. 78. The plaintiff did not allege in the plaint that the 5fh defendant could not suffer damage for want of notice, nor has any such issue been raised and proved.
3. In support of the 2nd contention, the learned pleader for the appellant relies on the English case of Porthouse v. Parker 10 R.R. 637. The decision in that case is virtually reproduced in Section 98(e) of the Negotiable Instruments Act which runs as follows:
No notice of dishonour is necessary to charge the drawers when the acceptor is also a drawer.
4. In that case, the bill was drawn by one Wood, as the agent of George, James and John Parker on John Parker. The bill was accepted by a certain person as the agent of John Parker on his account. It was held that there was sufficient evidence of its having been regularly drawn and. further that the acceptor being likewise a drawer and having dishonored the same, that must necessarily have been known to him and as he was one of the three drawers, the knowledge of one was the knowledge of all and that, therefore, it was not necessary to give notice of dishonour. Assuming as alleged by the plaintiff that the 5th and 6th defendants are partners which allegation is denied by both of them, it is not alleged in the plaint, nor is it proved that the 5th defendant drew the bill in question both on behalf of himself and the 6th defendant. The mere fact that the drawer and the drawee happen to be partners cannot lead to any presumption that they are partners in respect of the drawing of the bill or that the bill was drawn up by one of them on behalf of both. Even assuming that within the meaning of Section 98(e) and the definition of the word 'drawer' a person can be regarded as the drawer of a bill of exchange, when his name does not appear on the face of it, either individually, or collectively as included in the name of the firm, the present case does not fall within the principle of the above decision and Clause (e) of Section 98.
5. As regard the 3rd contention, it is impossible to hold upon the facts found by the Sab-Judge, that the 5th defendant was given or received notice of dishonour within the meaning of Section 30, in the manner prescribed by Section 94, or within a reasonable time as required by Section 106.
6. The Subordinate Judge his dismissed the plaintiff's claim against the 5th defendant also for another reason, viz., that as the suit was barred against the 6th defendant, the acceptor who was joined as a party to the suit, after the expiration of the period of limitation, the 5th defendant was also, therefore discharged under Section 134 of the Indian Contract Act. We may point out that this is clearly erroneous. If the suit be within time against the 5th defendant, the fact that it is barred by limitation as against the 6th defendant cannot operate as a discharge of the 5th defendant's obligation.
7. The second appeal fails and is dismissed with costs.