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Shunmuga Chettiar Vs. Siva Chinnasami Naidu and anr. - Court Judgment

LegalCrystal Citation
SubjectBanking
CourtChennai
Decided On
Reported in(1896)6MLJ697
AppellantShunmuga Chettiar
RespondentSiva Chinnasami Naidu and anr.
Excerpt:
.....them by reason of plaintiffs' neglect is one peculiarly within his knowledge. 173 of 1890 and for the like reasons as are recorded in our judgment there in we dismiss these petitions also with..........living at mauritius in favour of the plaintiffs' steamer agent. the plaintiff's case was that the hundis were presented for payment but not paid and that therefore the amount of the bond became due by the defendant. the defendent contended that the hundis were not: presented for payment, that he had no notice of their dishonor and that he was not liable under the bond. as regards the presentation of the hundis the subordinate judge found that though there was no direct evidence, it was presumable from the plaintiffs' conduct, and the evidence of their witnesses that the hundis were presented for payment but dishonoured. as regards notice of dishonour, he held that no notice was given within a reasonable time. the hundis were drawn in august 1886, and returned to this country unpaid only.....
Judgment:

1. This is a revision petition filed under Section 25 of Act IX of 1887. The petitioner is defendant and the counter-petitioners are plaintiffs in Small Cause Suit No. 811 of 1839, on the file of the Subordinate Judge of Kumbakonam. The suit was brought on a bond executed by defendant in plaintiffs' favour in August 1886, for passage money due by certain emigrants' who then proceeded from Tranquebar to Mauritius by the plaintiffs steamer. The bond was given as a collateral security for six hundies payable on demand which the defendant drew on certain persons living at Mauritius in favour of the plaintiffs' steamer agent. The plaintiff's case was that the hundis were presented for payment but not paid and that therefore the amount of the bond became due by the defendant. The defendent contended that the hundis were not: presented for payment, that he had no notice of their dishonor and that he was not liable under the bond. As regards the presentation of the hundis the Subordinate Judge found that though there was no direct evidence, it was presumable from the plaintiffs' conduct, and the evidence of their witnesses that the hundis were presented for payment but dishonoured. As regards notice of dishonour, he held that no notice was given within a reasonable time. The hundis were drawn in August 1886, and returned to this country unpaid only in June 1889. Adverting to the delay, the Subordinate Judge observed that when payment was demanded, defendant did not complain and that moreover he had no evidence to show that he drew the hundis upon his debtors and that he sustained any damage by reason of the delay. In the result he decreed the plaintiffs' claim.

2. It is urged for the petitioner that the finding that the hundis were presented for payment is a mere surmise. But it is in [676] evidence that six hundis were given, that three were paid and that the others were not paid. Both the witnesses for the plaintiffs disposed that when payment was demanded the defendant did not at once repudiate his liability on the ground that he had had no notice of dishonour. The first witness stated that when he demanded payment, the defendant took him to one Sundaram.Pillai, who promised to pay as soon as he heard of the dishonour. The 2nd witness also deposed that payment was dernanded on several occasions and that it was put off on some pretext or another. The fact that three out of six hundis given for the passage money were paid at Mauritius suggests to some extent the inference that all the six were presented and we cannot say that there is no evidence at all as to presentment. Nor can, we say that there is no evidence to shew that want of notice of dishonor was at once insisted on as a ground of discharge. We observe further that the suit is brought on a deed of indemnity whereby the defendant undertook to pay in case the hundis or any of them were returned unpaid to this country. It has been held that mere neglect to present for payment does not discharge one who guarantees payment of a bill or note unless it is shown that if it had been presented, it would have been duly paid (see Byles on Bills, 292, 14tn Edition). It is also found by the Subordinate Judge that the defendant has no evidence to shew that he has been damnified in any way by Want of notice of dishonor! The action being one based on an indemnity bond, it is clearly for the defendant to prove that he has sustained damage, especially as the fact whether the drawee has had any effects of the drawer in his hands and whether the latter has not been able to withdraw or otherwise utilize them by reason of plaintiffs' neglect is one peculiarly within his knowledge. As regards the objection that the claim is barred by limitation it is to be observed that under the terms of document A, the debt became due only when the hundis were returned unpaid. We are also unable to hold that interest was not chargeable under the bond in default of payment from date of its execution. We dismiss this petition with costs.

Note-Judgment in C.R.P. Nos. 174 to 176 of 1890--These oases follow 0. ft. P. No. 173 of 1890 and for the like reasons as are recorded in our Judgment there in we dismiss these petitions also with costs.


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