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Dev Shanker Dolia Vs. M.H. Fernandez and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 289 of 1961
Judge
Reported inAIR1964Mad238
ActsLimitation Act, 1908 - Sections 19, 20 and 21; Code of Civil Procedure (CPC) , 1908 - Sections 115
AppellantDev Shanker Dolia
RespondentM.H. Fernandez and anr.
Appellant AdvocateK.G. Manickavsagam, Adv.
Respondent AdvocateM.S. Sampathkumar, Amicus curiae
Cases ReferredRangaswami Aiyangar v. Somasundaram Chettiar
Excerpt:
- - it was held that, the person who made the second endorsement must by his conduct be deemed to have ratified the first payment, that the persons who made the third endorsement must by their conduct be deemed to have held themselves as still bound under the promissory note by reason of the two prior endorsements evidencing part payments which had already been made, and that the persons who made the first two payments and endorsed them on the note must be deemed to have been duly authorised in that behalf by the new executants who joined in making the third payment for the purposes of sections 19 and 20 of the limitation act......the promissory note is not supported by consideration to the full amount mentioned because the suit note is double bond. the respondents have also taken the plea that the suit is barred by limitation so far as the second respondent it concerned.2. the learned judge who tried the suit found that the suit promissory note was supported only to the extent of rs. 400 and that the suit was barred by limitation as against the second respondent as the endorsement made by her on 8-11-1958 was more than three years after the suit promissory note and that the petitioner would not be entitled to a decree against the second respondent. in the end he gave a decree against the first respondent alone. it is against this judgment and decree the plaintiff-petitioner has preferred this civil revision.....
Judgment:

Venkatadri, J.

1. This civil revision petition arises out of the small cause suit S. C. No. 257 of 1960 filed by the plaintiff-petitioner for the recovery of Rs. 900, being the balance of principal and interest alleged to be due on a promissory note dated 29th July 1955, executed by the respondents, who are husband and wife, in favour of the petitioner, for Rs. 800, payable with interest at 15 per cent per annum. The defence to the suit is that the promissory note is not supported by consideration to the full amount mentioned because the suit note is double bond. The respondents have also taken the plea that the suit is barred by limitation so far as the second respondent it concerned.

2. The learned Judge who tried the suit found that the suit promissory note was supported only to the extent of Rs. 400 and that the suit was barred by limitation as against the second respondent as the endorsement made by her on 8-11-1958 was more than three years after the suit promissory note and that the petitioner would not be entitled to a decree against the second respondent. In the end he gave a decree against the first respondent alone. It is against this judgment and decree the plaintiff-petitioner has preferred this civil revision petition against both the respondents, the husband and wife.

3. The learned advocate for the petitioner contented that there should be a decree against both the respondents because the endorsement made by the wife on 8-11-1958 was certainly binding on the husband also. In support of his contention he relied on the decision in Annamalai Pattar v. Natesa Iyer, 1914 Mad WN 792 : AIR 1915 Mad 307, where it was observed as follows.

'From a number of endorsements on a promissory note by two promisors a court can infer that the promisors had each authorised the other to make acknowledgments so as to bind both.'

This decision was followed by Thiruvenkatachariar J. in Rangaswami Aiyangar v. Somasundaram Chettiar, 54 MLJ 150 : AIR 1928 Mad 173. That was also a case, where a promissory note was executed by several persons and the last endorsement was made after three years. It was held that,

'the person who made the second endorsement must by his conduct be deemed to have ratified the first payment, that the persons who made the third endorsement must by their conduct be deemed to have held themselves as still bound under the promissory note by reason of the two prior endorsements evidencing part payments which had already been made, and that the persons who made the first two payments and endorsed them on the note must be deemed to have been duly authorised in that behalf by the new executants who joined in making the third payment for the purposes of Sections 19 and 20 of the Limitation Act.'

4. Following the principle laid down in the above two decisions I am of opinion that the endorsement made by the second respondent on 8-11-1958 was as an agent of her husband, the first respondent, and hence the petitioner would certainly be entitled to get a decree against the second respondent also.

5. The next contention raised by Mr. Manickavasagam, learned counsel for the petitioner is that there is no evidence on record to show that the suit promissory note Is a double bond. The learned Judge believed the evidence of the respondents and came to the conclusion that the promissory note was supported by consideration only to the extent of Rs. 400/. This being a question of fact I cannot interfere in the civil revision petition.

6. The next point urged before me is that in any event only Rs. 40 should have been deducted and not Rs. 82 from the amount due and payable by the respondents. I do not agree. If really there was any confusion he should have filed an application for review in the lower court itself. I do not see any reason to interfere in revision.

7. The civil revision petition is accordingly allowed, to the extent indicated above. In the circumstances, I make no order as to costs.


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