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Pollachi Town Bank, Ltd. Vs. K.L. Subramania Ayyar - Court Judgment

LegalCrystal Citation
SubjectBanking
CourtChennai
Decided On
Reported inAIR1934Mad180; 147Ind.Cas.1192
AppellantPollachi Town Bank, Ltd.
RespondentK.L. Subramania Ayyar
Cases ReferredPrice v. Barkar
Excerpt:
- .....for some unexplained reason he takes the initiative and calls upon the secretary to grant the loan. the president has not chosen to tell the court in what circumstances he came to write ex. c, for neither party had adduced oral evidence. ex, c runs thus:it the loan application with the rice merchant appasami ayyan as surety is received, give that loan at once keeping this chit along with it.2. the rules of the bank provide that when a party applies for a loan, the secretary shall take the view of the directors, including the president and that he shall be guided by the opinion of the majority. par from this rule being observed, the president directs the secretary to grant the loan and adds that this letter should be kept as a vouoher. i have not the slightest doubt that both these.....
Judgment:

Venkatasubba Rao, J.

1. That defendant 1, the President, acted in utter disregard of the rules of the Bank, cannot be doubted. For some unexplained reason he takes the initiative and calls upon the secretary to grant the loan. The President has not chosen to tell the Court in what circumstances he came to write Ex. C, for neither party had adduced oral evidence. Ex, C runs thus:

It the loan application with the riCe merchant Appasami Ayyan as surety is received, give that loan at once keeping this chit along with it.

2. The rules of the Bank provide that when a party applies for a loan, the secretary shall take the view of the Directors, including the President and that he shall be guided by the opinion of the majority. Par from this rule being observed, the President directs the Secretary to grant the loan and adds that this letter should be kept as a vouoher. I have not the slightest doubt that both these officers made themselves liable. Ex. C has been rightly construed by the District Munsif and the view of the lower appellate Court is entirely wrong.

3. But it is contended for the President, that the secretary has been exonerated by a resolution of the Bank and that a release granted to a joint torfcfeasor operates as a discharge of the other joint tortfeasor also. That the Secretary was exonerated, seems to have been assumed in the lower Courts. In the resolution to which my attention has been drawn, it is expressly stated that the Bank should recover the sum lost from the President. The question then is, whether there was a release granted to the secretary, for the law is clear that the release of one joint wrong doer releases all the others : (Salmond's Law of Torts, 6th Edn. 88). But it is equally clear that a covenant not to sue one joint tortfeasor does not operate as a release of the other. A transaction, which is in form an actual release, will be construed as being merely an agreement not to sue, if it contains an express reservation of the right to proceed against the other wrong doers; for this reservation would be otherwise wholly ineffective: (Salmond's Law of Torts, p. 88). The leading case on the subject is Duck v. Mayeu (1892) 2QB 511. A.L. Smith, L.J. delivering the Judgment of the Court of appeal, observed thus:

A rule of construction for a such a document was laid down by the Court of Queen's Benoh in Price v. Barkar 4 E & B 760, where it was held, that in determining whether the document be a release or a covenant not to sue, the intention of the parties was to be carried out, and if it were clear that the right against a joint debtor was intended to be preserved, inasmuch as such right would not be preserved i the document were held to be a release, the proper construction, where this was sought to be done was that it was a covenant not to sue, and not a release.

4. In this case whether the secretary was exonerated or not may be doubtful (I am not concerned with that, as no Claim is now made against the secretary), but that the right to proceed against the President has been expressly reserved admits of no doubt.

5. In the result the second appeal is allowed and the District Munsif s judgment is restored. Defendant 1 will pay the plaintiff's costs throughout.


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