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Ghulamsa Ravuthar and ors. Vs. S.M.R.M.S.V. Visvanathan Chettiar - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1918Mad524; 40Ind.Cas.347
AppellantGhulamsa Ravuthar and ors. ;sultan MohiuddIn Ravuthar and ors. and A.S. Muhammad HusaIn Ravuthar and
RespondentS.M.R.M.S.V. Visvanathan Chettiar
Cases ReferredKoneti Naieker v. Gopala Aiyar
Excerpt:
negotiable instruments act (xxvi of 1881), section 28, scope of - payee, description of, by vilasam of firm--mercantile usage--nattukottai chetties, custom among--document, construction of--surety for consolidated amount made up of several promissory notes, liability of--cause of action--contract act (ix of 1872), section 128. - - justice wallis, as he then was, sitting on the original side of this court where he held on the evidence adduced in that case that it was a well-known usage among chetties to draw hundies, bills and promissory notes in this form and that in such cases, it is the firm indicated by the vilasam which is intended to be the payee and not the agent, though his name appears on the instrument......as the promissory notes on which the suits are based are made out in the name of 's.m.r.m.s.v. raman chetty', the contention being that the payee that is intended is raman chetty, the agent of the firm, indicated by the letters prefixed to his name, and not the firm itself. the question is entirely one of construction. we have to consider whether when the notes purport to be made payable to s.m.r.m.s.v. raman chetty what was intended was that the payee was to be the firm as indicated by the letters of the vilasam and represented by raman chetty the agent, or whether the payee was to be raman chetty who was in fact the agent of the plaintiff's firm. no evidence has been adduced in this case as to any particular usage obtaining among the nattukottai chetties, in describing the firm.....
Judgment:

1. The first objection raised in these appeals is that the plaintiff's firm was not entitled to maintain the suits, inasmuch as the promissory notes on which the suits are based are made out in the name of 'S.M.R.M.S.V. Raman Chetty', the contention being that the payee that is intended is Raman Chetty, the agent of the firm, indicated by the letters prefixed to his name, and not the firm itself. The question is entirely one of construction. We have to consider whether when the notes purport to be made payable to S.M.R.M.S.V. Raman Chetty what was intended was that the payee was to be the firm as indicated by the letters of the vilasam and represented by Raman Chetty the agent, or whether the payee was to be Raman Chetty who was in fact the agent of the plaintiff's firm. No evidence has been adduced in this case as to any particular usage obtaining among the Nattukottai Chetties, in describing the firm either as maker of the promissory note or as payee. But there is a decision Mungamal Jesse Singh v. A.L.V.R.C.T. Firm 4 M.L.T. 309 of Mr. Justice Wallis, as he then was, sitting on the Original Side of this Court where he held on the evidence adduced in that case that it was a well-known usage among Chetties to draw hundies, bills and promissory notes in this form and that in such cases, it is the firm indicated by the vilasam which is intended to be the payee and not the agent, though his name appears on the instrument. This decision was appealed from and confirmed by this Court in Original Side Appeal No. 58 of 1908. There is an allusion to this usage to be found also in Muthar Sahib Maraikar v. Kadir Sahib Maraikar 28 M. 544 : 15 M.L.J. 384 and the learned Subordinate Judge in this very case also holds it to be clear that the person indicated as the payee on these promissory notes is the firm and not Raman Chetty, the agent. We, therefore, read the promissory notes as meaning that the amounts were to be paid to the firm as represented by Raman Chetty.

2. But even if we were to read the notes as contended on behalf of the appellants, as if they were made payable to Raman Chetty the agent of the plaintiff's firm, that will not in any way help them. It has been laid down by the Full Bench in Koneti Naieker v. Gopala Aiyar 21 Ind. Cas. 417 : 38 M 482 : 25 M.L.J. 425 : 14 M.L.T. 414 that if a promissory note is made by a person as agent of another, the latter is not liable personally on the note. This is the effect of Section 28 of the Negotiable Instruments Act and we think the principle underlying the section is applicable also in the case of a payee. We, therefore, hold that this objection to the suits is not tenable.

3. The next question which is argued by Mr.T.R. Venkatarama Sastriar is that inasmuch as the 1st defendant's liability was based on Exhibit E according to which he made himself liable to the extent of Rs. 15,000, the entire cause of action arose at the date of the institution of the Original Suit No. 16 of 1914 and the subsequent suits were barred by virtue of Order II, Rule 2, corresponding to Section 43 of the old Civil Procedure Code. It is contended that the liability of the 1st defendant under Exhibit E was a single liability with respect to the entire amount borrowed, though different amounts were borrowed from time to time under separate promissory notes. We do not think there is any force in this contention. The cause of action on each of these promissory notes was separate and that being so, the liability of the 1st defendant who stood in the position of a surety was also separate with respect to each of the promissory notes. The objection, therefore, fails.

4. It is also argued that the 1st defendant was not the partner of the firm, but we have not the slightest doubt that the finding of the Subordinate Judge on this point is right.

5. Another objection had been taken to the suits that inasmuch as the partnership of the defendants was not registered according to the Ordinance of Ceylon, they would not be liable for the debts contracted from the plaintiff. The Ordinance itself in express terms says' that the absence of registration would not affect the liability of the partners to third persons.

6. Then it was argued that the Subordinate Judge ought to have appointed a Commissioner to take the accounts. But with respect to the amounts borrowed, there are the promissory notes on which the suits are based and there was no necessity for any accounts being taken since the amounts due upon the promissory notes were proved before the Subordinate Judge. All the appeals are dismissed with costs.


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