1. In this suit the plaintiff is claiming a decree for Rs. 17,684.22 paise. The case of the plaintiff is that the defendant executed at Calcutta within the jurisdiction of this Court, two promissory Notes dated March 21, 1958 for Rs. 5,000/-and September 8, 1958 for Rs. 12,000/- respectively. In acknowledgment of receipt of the said two sums of Rs. 5,000/- and Rupees 12,000/- the defendant executed two receipts and/or vouchers on March 21, 1958 and September 8, 1958, at Calcutta within the said jurisdiction. In or about January, 1961, the said two promissory Notes were lost and/or misled and the plaintiff has not been able to trace the same. Thereafter, on March 14, 1961 the plaintiff gave notice to the defendant that the said promissory notes had been lost and/or misled and called upon the defendant to pay the plaintiff the amount due on the promissory notes and offered to indemnify the defendant against any further claim thereof. The defendant failed to pay the amount due on the promissory notes or give any reply to the said letter. Thereafter this suit has been instituted on March 17, 1961.
2. The defendant admits execution of the promissory notes and the receipts of the monies under the said promissory notes. The defendant admits that in acknowledgment of receipt of the said sums the defendant duly executed two separate receipts and/or vouchers in favour of the plaintiff, but states that the promissory notes and the receipts and/or vouchers were not executed at Calcutta within the said jurisdiction but the same were executed at 23/21, Gariahat Road outside the aforesaid jurisdiction of this Court.
3. The defendant denies that the plaintiff is the Karta of the joint family consisting of himself and his sons Chandra Kumar Karnani and Sudarshan Kumar Karnani. The defendant states that the plaintiff alone is not entitled to file this suit against the defendant. Further case of the defendant is that the defendant repaid the sum of Rs. 5,000/- and Rs. 12,000/- in due course and the said promissory notes had been discharged by payments. The defendant states that upon receipt of the sums the plaintiff returned the said two promissory notes duly discharged to the defendant. With regard to the letter dated March 14, 1961, the defendant states that after receipt of the said letter the defendant met the plaintiff and objected to his writing of such frivolous letter knowing fully well that the contents of the said letter were totally false.
4. The following Issues were raised :
1. Have the two separate promissory notes dated March 21, 1958 and September 8, 1958 respectively been lost or misled in or about January, 1961 as alleged in paragraph 4 of the plaint?
2. Did the defendant repay the sum of Rs. 5,000/- and Rs. 12,000/- with interest thereon to the plaintiff as alleged in paragraph 2 of the written statement?
3. Is the plaintiff alone entitled to file the suit against the defendant as alleged in paragraph 1 of the written statement?
4. Is the suit bad for non-joinder of parties?
5. Has this Court jurisdiction to entertain and try this suit?
6. To what relief, if any is the plaintiff entitled?
5. I will shortly indicate the oral evidence adduced in this case: --
The plaintiff called one Sanak Chandra Biswas. He looked after the work of Bejoy Kumar Karnani and also the work of Karnani properties. His main work was to look after the work of Bejoy Kumar Karnani. Chandra Kumar Karnani and Sundarsan Karnani are the two sons of Bejoy Kumar Karnani. The plaintiff is the Karta of the joint family and the members of the joint family are Chandra Kumar, Sudarsan and Bejoy Kumar. Bejoy Kumar is the Karta of the joint family business. He went to the office of the defendant for making payment. The office of the defendant was situate at No. 17, Chowrin-ghee Road, Calcutta. He went to the office of the defendant on March 21, 1958 and again on September 8, 1958. He paid to the defendant a sum of Rs. 5,000/- on March 21, 1958 and thereafter Rs. 12,000/- on September 8, 1958. He went there on instructions of Bejoy Kumar Karnani, to make payment to the defendant. He took the promissory notes, which were already typed. His Babu meaning thereby Bejoy Kumar Karnani handed over the promissory notes to him. The promissory notes and the vouchers (receipts) were signed in his presence by the defendant at No. 17, Chowringhee Road, Calcutta. The vouchers also contained a receipt on the back portion and both the vouchers were signed by the defendant. The vouchers were written by one Kanai Lal Kundu who was an accountant of the plaintiff. The two original promissory notes are untraceable. After the loss of the promissory notes, a letter was given to the defendant on March 14, 1961. The letter was duly acknowledged by the defendant, but the plaintiff did not get any reply from the defendant and the suit was instituted claiming the amount of the Promissory notes with interest thereon. In the cross-examination this witness stated that the defendant was a Director of Karnani Properties Limited in the year 1958. In the year 1958 the defendant was also a Director of the Karnani Investment. This witness admitted that one Kanailal Kundu was the accountant of Karnani Properties Limited. This witness was the full time employee of the Karnani Properties Limited and often used to do the work of Bejoy Kumar Karnani. The promissory notes and the vouchers were written by Kanailal Kundu in the office of Bejoy Kumar Karnani at 23/21, Gariahat Road, Calcutta. The Promissory notes and the vouchers were executed at No. 17, Chowringhee Road which was by the side of Grand Hotel. The witness stated that the defendant took money on several other occasions from Bejoy Kumar Karnani. This witness was a clerk and thereafter he was also doing the work of an accountant.
6. The defendant gave evidence before me. The defendant stated that he knew the plaintiff and also the family of the plaintiff very well since 1944-45. He was the Receiver of Karnani Estates for 15 years. Bejoy Kumar Karnani is the director in charge of the Karnani Properties Pvt. Ltd. It is a very big property and the income also was large. His case is that the promissory notes were executed at No. 23/21, Gariahat Road, Calcutta. Three persons present were Bejoy Kumar Karnani and his accountant and himself. He stated that he knew Sanak Chandra Biswas, who deposed in the Court. According to him Sanak Chandra Biswas did not go to this office at No. 17, Chowringhee Road, Calcutta. He stated that he repaid the amount due on promissory notes with interest on September 18, 1959. He said that he was a friend of the family of the plaintiff. After repayment of the amounts due on the two promissory notes with interest, the plaintiff torn the promissory notes and handed over the torn promissory notes to him and thereafter the torn promissory notes were destroyed by him. The defendant admitted the execution of the promissory notes and also admitted that the defendant signed the vouchers acknowledging the receipts of the sum of Rs. 5,000/- and Rupees 12,000/-, but stated that he executed the promissory notes and signed the receipts at No. 23/21, Gariahat Road. The defendant further stated that at the date when the suit was instituted he was not carrying on any business at No. 17, Chowringhee Road, Calcutta. The defendant's case is that he repaid the money with interest in full to the plaintiff.
7. I will now discuss the Issues raised in this case. Issue No. 5 was stressed very much by Dr. S. Das, the learned counsel for the defendant. It was argued before me that this Court has no jurisdiction to entertain and try this suit because no part of the cause of action arose within the jurisdiction of this Court. On this point the evidence of the defendant is that he took the money outside the jurisdiction; he executed the promissory notes, and signed the vouchers outside the jurisdiction of this Court; and he did not carry on business within the jurisdiction at the date when this suit was instituted. On behalf of the plaintiff Sanak Chandra Biswas states that he went to the office of the defendant at No. 17, Chowringhee Road, Calcutta, for making payments. He went to the office of the defendant on March 21, 1958 and on September 8, 1958. On the first occasion he paid to the defendant Lahori Ram Prasher. He says that there were some talks with his 'Babu' meaning thereby Bejoy Kumar Karnani, and thereafter Bejoy Babu instructed him to take the money and go to the office of the defendant and pay him there. The hand-notes were typed and prepared in the office of the plaintiff and he took the same to the defendant at 17 Chowringhee Road. Before he paid the money the promissory notes were signed. The promissory notes were signed in his presence. The reverse side of the original receipts was also signed by the defendant in his presence. The vouchers were written out in the hand of one Kanai Lal Kundu, an accountant of the plaintiff. He says that the original promissory notes were untrace-able and after the loss of the promissory notes a letter dated 14th March 1961 was written to the defendant. With regard to the point of jurisdiction raised by the defendant it appears that in each of the promissory notes dated March 21, 1958 and September 8, 1958, it is written in two places -- 'premises No. 17 Chowringhee Road, Calcutta 13.' This address '17, Chowringhee Road, Calcutta 13' appears at the top of the each of the promissory notes and also at the end after the signature of the defendant Lahori Ram Prasher. The defendant admitted that annexures to the plaint are correct copies of the promissory notes. He stated that the promissory notes were executed at 23/21 Gariahat Road. If that be so, there is no reason why at the top of the promissory notes and also at the place after the signature of the defendant the address '17 Chowringhee Road, Calcutta' would be written. This address seems to me to be the place of execution of the promissory notes. There was never any objection by the defendant that this address was written wrongly. Admittedly the defendant signed the promissory notes. Admittedly, he knew what was written in the promissory notes and yet he never objected to the same. The way that the defendant gave evidence in answer to the questions before me, I do not believe that the defendant was telling the truth when he said that he received the money from the plaintiff at 23/21 Gariahat Road. I believe that the evidence of the plaintiff's witness that the promissory notes were executed at No. 17 Chowringhee Road, Calcutta, which is within the jurisdiction of this Court.
8. Dr. S. Das contends that the plaintiff has not called the accountant Kundu whose name appears in the voucher. The plaintiff also did not himself give evidence before this Court. Dr. Das submits that the plaintiff and the accountant of the plaintiff are the most important witnesses. Dr. Das submits that his client's case is that the promissory notes were executed at No. 23/21 Gariahat Road, outside the jurisdiction of this Court and when the defendant raised the issue that this Court had no jurisdiction to entertain and try this suit, the plaintiff himself should have given evidence and also should have culled the accountant Kundu whose name appears in the voucher. Dr. Das referred to Section 114 illustration (g) of the Indian Evidence Act and also cited a number of decisions. Section 114, illustration (g) of the Indian Evidence Act provides that the Court may presume that evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it. Dr. Das submits that the plaintiff is an essential witness. He knows the whole circumstances of the case and he should have given evidence. Dr. Das submits that the plaintiff's case is that the promissory notes were executed in Calcutta within the jurisdiction of this Court. Therefore, the plaintiff is a material witness to prove this fact. He further submits that the plaintiff should have given evidence to contradict the defendant's case that the promissory notes were executed at his residence at Gariahat Road and also to prove that the money due under the promissory notes has not been paid. In support of this proposition the first case cited by Dr. Das in 32 Cal WN 119 = (AIR 1927 PC 230), Gurbakhsh Singh v. Gurdial Singh). This is an appeal to the Privy Council against the judgment and decree of the Subordinate Judge at Ludhiana. The question in this case was whether the second wife of a Jagirdar since deceased, gave birth to a posthumous son. If that was so, then the posthumous son would succeed to the properties, otherwise the step-brother of the Jagirdar Jwalla Singh would get the properties. The case of the appellant was that no such posthumous son was born. After the death of the Jagirdar his step-brother made a petition to the Mutation Officer claiming that the property was his. It was a dispute between the parties. It appears that the second widow was moving from place to place. In the mutation register there was certain entry under the signature of one Bachittar Singh that the Jagirdar Jwalla Singh died sonless and his two widows are entitled to succeed to the property left by him in equal shares. It is also stated by one Bachittar Singh that Mst. Bhagwan Kaur the second widow is pregnant. There is also some contradictory statements by the first widow Mst. Harnam Kaur before the Collector, namely, that a month after the death of her husband the second widow was sent to her parent's house to secure a spurious son in order to prejudice her rights. It was argued that the statements as to pregnancy attributed to Bachittar Singh was interpolated by the Patiwari in the original record on the death of Jwalla Singh, In the judgment it was observed by the Privy Council that 'it is striking and suspicious that Bachittar Singh to whom this statement was attributed was not called as a witness to clear up the point or to state upon what information his alleged statement was made.' At the bar of the Board, it was admitted by the respondent that the second widow Bhagwan was present in Court when the evidence was taken and that she did not go into the witness box and was not examined as witness on her own or on her alleged son's behalf. On these facts, Lord Shaw who delivered the judgment of the Privy Council made the following observations. 'Notice has frequently been taken by this Board of this type of procedure (namely, not calling the second widow who was present in Court). It sometimes takes the form of manoeuvre under which the counsel does not call his own client, who is an essential witness, but endeavours to force the other party to call him and so suffer the discomfiture of having him treated as his, the other party's, own witness'. The Privy Council deprecated such practice as follows: 'This is thought to be clever but it is bad and degrading practice, Lord Atkin-son dealt with the subject in Lal Kunwar v. Chiranji Lal, (1910) 37 Ind App 1 = 14 Cal WN 285 calling it a vicious practice, unworthy of a high toned or reputable system of advocacy.' The Privy Council continued as hereunder. 'The present case, however, is a pointed instance of the evils which flow from such practice. Bhagwan's case has been the subject of prolonged investigation in the revenue courts and had been pronounced by them as bogus case. She had appeared and delivered a story there and it had not been believed. She was, however, also present in this Civil Suit, the issue in which was the legitimacy of the boy that she was putting forward as the jaghir of the estate. Her non-appearance, in answer to the challenge, that is to say, to disclose the actual fact as to her condition shortly after her husband Jwalla's death, her disappearance into a foreign State, and all the other circumstances mentioned, had been established. If her story notwithstanding all these, (were) true story, it was her bounden duty to give evidence in this suit, telling the whole facts in support of her and her alleged son's case; but she did not. If under advice she did not do so, that advice was of the worst description and worthy of the animadversion above made. But in any view, her non-appearance as a witness, she being present in Court, would be the strongest possible circumstance going to discredit the truth of her case.'
9. Under the above circumstances, the Privy Council held :
'the true object to be achieved by a Court of Justice can only be furthered with propriety by the testimony of the party who personally knowing the whole circumstances of the case can dispel the suspicions attaching to it. The story can then be subjected to all its particulars to cross-examination.'
10. I do not understand how this decision of the Privy Council establishes the proposition made by Dr. Das that under the facts of the instant case before me for non-calling of Bejoy Kumar Karnani and the Ac-countant Kundu I shall draw the adverse inference which the Privy Council was pleased to draw by non-calling the second widow of Jawalla Singh. In the instant case, Sanak Chandra Biswas an employee of Bejoy Kumar Karnani gave evidence before me, stating that two documents were executed before him by the defendant at No. 17, Chowringhee Road, Calcutta, and he made payment of the money which he carried to the defendant at that place. He took the promissory notes and two vouchers were signed in his presence at No. 17, Chowringhee Road, Calcutta, When he took the money to the defendant No. 17, Chowringhee Road, only the Darwan accompanied him. He did not remember the name of the Darwan. Apart from the Darwan, driver of the defendant drove the car. Therefore, at the time when the promissory notes were executed Bijoy Kumar Karnani was not present. There is no dispute with regard to making of the vouchers. The execution of the receipts in the vouchers is also admitted. Only the place of execution is disputed. In view of the evidence given on behalf of the plaintiff, I do not understand how the plaintiff was a material witness to prove the fact of the place of the execution of two promissory notes and why I should draw any adverse inference which the Privy Council was pleased to draw under entirely different facts and circumstances. It is true that the defendant made the case that the promissory notes were executed at 22/23, Gariahat Road, outside the said jurisdiction. But this was not the case of the plaintiff. In cross-examination it was suggested that paragraphs I and 2 of the plaint are verified by the plaintiff as true to this knowledge and it was suggested that the plaintiff should have come and deposed. But in view of the evidence given by the plaintiff's witness I do not think that the plaintiff himself was a material witness to prove the place of execution. The accountant Kundu is also not a material witness in this suit. The argument made by Dr. Das, if accepted, would mean that the plaintiff should have been called to disprove the defendant's case. In my view, there is no question of invoking presumption of Section 114, illustration (g) of the Indian Evidence Act and the principles laid down in the said Privy Council decision, cannot apply in this case.
11. The next case cited by Dr. Das is (1970) 74 Cal WN 680, (Kumati Bala Roy v. Nirmal Chandra Roy). This appeal arises out of a suit for setting aside a Kobala dated September 7, 1959 executed by the mother Smt. Pusheswari Debi of the plaintiffs in favour of her brother's son who is defendant No. 1 in this suit. The plaintiffs challenged the said Kobala as vitiated by fraud and undue influence of the brother and brother's son of Pusheswari. The Learned Subordinate Judge after considering the evidence found that the Kobala in question was not obtained by fraud or undue influence of the brother and brother's son of Pusheswari. The learned Subordinate Judge after considering the evidence found that the Kobala in question was not obtained by fraud or undue influence and that document was executed by Pushesh-wari for consideration mentioned therein. The defendants in their written statement pointed out that Pusheswari Debi was taken by the husband of the plaintiff No. 2 to Coochbehar for the purpose of execution of the kobala. The plaintiff did not make any attempt to examine the husband of plaintiff No. 2. It was held that the lower appellate Court had rightly drawn an adverse inference against the plaintiff for the failure of the plaintiff to examine Ganesh, the husband of the plaintiff No. 2. The finding of the lower appellate Court was that Ganesh, husband of the plaintiff No. 2 accompanied by Pusheswari went to Coochbehar for execution of the kobala. If that be so, then the question of undue influence must have been overruled for it cannot be held that Pusheswari at the time of the execution of the kobala was under the control and domination of her brother or her husband. In my view this judgment is not an authority for the proposition that under the facts of this case Bejoy should have been called as a witness.
12. The next case cited by Dr. Das is , (Karnal Distillery Co. Ltd. v. Ladli Proshad Jaiswal). In this case question of undue influence was raised. It was held that the finding of the first appellate Court as to the existence of undue influence exercised by the plaintiff over his younger brother and nephews is one of the fact and is not open to question in a Letters Patent appeal against the decree of the Second Appellate Court, when there is evidence in support of the finding.
13. Dr. Das relied on page 203 para 52 of the judgment which is as follows :
'The Learned Single Judge criticised the conduct of the defendants, in not appearing as witnesses in support of their plea, despite several opportunities having been given and not having been availed of, on one pretext or the other. The Learned Single Judge was of the view, that defendants were resorting to dilatory tactics with a view to continue their hold on the ..... The defendant's application at the stage of arguments to be allowed to examine themselves was belated and therefore, the trial Court declined to accede to their request. I am aware of the rule that it is the bounden duty of a party personally knowing the facts and circumstances of the case to give evidence, and to submit to cross-examination. Court have rightly drawn a presumption against the party avoiding the witness-box and not submitting himself to cross-examination. The person, who advised them against their appearing as their witness, did a disservice to them. The party who does not enter the witness-box runs a great risk of a presumption being drawn against him.'
14. I do not think that this decision supports the contention of Dr. Das. In the instant case, the execution of the promissory notes and signing of the receipts are admitted. The payment of consideration is admitted. Only dispute is as to the place of payment. The witness called by the plaintiff says that the execution was made in his presence at No. 17, Chowringhee Road, Calcutta, Therefore, Bejoy who was not present at the time of execution is not a material witness. This decision of the Punjab High Court does not help Dr. Das under the facts of this case. On this point Dr. Das cited another case reported in : 3SCR862 , (Gopal Krishnaji Ketkar v. Mahamed Haji Latif). The appellant made an application to the Deputy Charity Officer, Greater Bombay Region under Section 18 of the Bombay Public Trust Act. The main question for determination in this appeal is whether the land comprised in survey plot No. 134 was the property of the Dargh or whether it belonged to the appellant.
15. It appears that the appellant made certain important admissions, namely, that he has not produced the account of Dargh income. In course of his evidence the appellant admitted that he was enjoying the income of the Plot No. 134, but he did not produce any accounts to substantiate his contention. He also admitted that he had got record of the Dargh income and that account was kept separately. But the appellant has not produced either of his own account or the accounts of the Dargh to show how the income of the Plot No. 134 was dealt with. It was argued that it was not part of appellant's duty to produce the accounts unless he was called upon to do so and the onus was upon the respondent to prove the case and to show that the Dargh was the owner of plot No. 134.
16. The Supreme Court under the facts of this case observed as follows:
'We are unable to accept this argument as correct. Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.'
17. I do not think that the decision of the Supreme Court helps the contention of Dr. Das that I will draw any adverse inference by non-calling Bejoy under the facts of this case. There is no question of withholding any important documents by the plaintiff in this case. With regard to the point of dispute it is not the plaintiff's case that Bejoy was present at the time of execution of the documents and still he did not come. In view of the above matter I hold that this Court has jurisdiction to entertain and try the case. Leave under Clause 12 of the Letters Patent has been granted by this Court and leave was not revoked. The defendant did not apply for revocation of leave. In my view the leave under Clause 12 has been duly and properly granted by this Court.
18. With regard to the Issues Nos. 1 and 2, it is admitted that the letter dated March 14, 1961 was written by the solicitor of the plaintiff to the defendant. In this letter it was mentioned that the promissory notes were lost or misled in or about January, 1961 and the plaintiff is ready to indemnify the defendant against the claim, if any, or any other person. In this letter it was stated that demand had been made for repayment of the money due under the promissory notes with interest thereon. Admittedly the defendant received this letter. The case of the defendant is that after receipt of this letter the defendant went to Shri Bejoy Kumar Karnani at No. 23/21, Gariahat Road, when Bejoy Babu told him that having regard to the good relations, this letter is nothing and he need not take any notice of this letter when money had been paid by him. In paragraph 2 of the written statement the defendant stated that he repaid the sums of Rs. 5,000/- and Rs. 12,000/- with interest and upon receipt of the said sums the plaintiff returned the two promissory notes duly discharged to the defendant. But before me the defendant says that the promissory notes were torn by the plaintiff after he repaid the sums. The plaintiff has torn the same and given the torn promissory notes to him and thereafter the defendant again tore them and then threw them out. (Lahori Ram Prasher, Q. 87-88). The case of tearing or destroying the promissory notes by the defendant was not made in the Written Statement. There is no reply to the letter dated March 14, 1961. This letter was admittedly received by the defendant. In cross-examination the defendant admitted that the defendant and his wife were indebted to the company in which the plaintiff was the managing director and a suit was filed against the defendant and the decree was passed. He admitted that in 1959 he was indebted to Karnani properties. The case of repayment of the money and the case of tearing of the promissory notes can- not be believed. The way this witness gave evidence clearly shows that the witness was not telling the truth before me. One of the most important points is when the defendant re-paid the money? In the written statement the date of repayment of the loan namely September 18, 1959 was not mentioned. In 1959 the defendant and his wife were indebted in respect of large amounts due to Karnani properties. The defendant states that he came to know of the filing of the suit on April 20, 1961, after receipt of the summons (Lahoriram Q. 103). Therefore before April, 1961, the defendant had no knowledge of the filing of the suit. Had the case of the defendant been correct, namely, that he repaid the money on September 18, 1959, he would have recorded this fact by writing a reply to the solicitor's letter dated March 14, 1961. This he did not do. There is nothing to show that the defendant actually repaid the money except his oral statement in witness box. The defendant had no assessable income during the year 1959 and he did not pay any income-tax. There is no documentary evidence to show where from the defendant got so much money to repay the loan. No books of accounts had been disclosed to show who paid the money to the defendant and how such amount was paid. The date of repayment of loan namely September 18, 1959 has been stated for the first time in the witness box. The defendant did not mention the date of repayment in the written statement nor even in cross-examination, suggestion was made to the plaintiff's witness that the defendant repaid the money with interest thereon on 18th September, 1959. The manner in which the defendant gave evidence as to repayment threw great doubts in my mind as to the truth of the statement about repayment. I do not believe the defendant on the point that he repaid the money with interest thereon on 18th September, 1959.
19. Question of some importance has been raised in Issue No. 3. Dr. Das contends that (1) the suit is on two Promissory notes. Payees of the promissory notes are three: Bejoy Kumar Karnani, Chandra Kumar Karnani and Sudarshan Kumar Karnani. Bejoy Kumar Karnani for self and as Karta of a Hindu Mitakshara Joint Family consisting of himself and his two sons Chandra Kumar Karnani and Sudarshan Kumar Karnani is not the holder of the promissory notes. The suit as framed is not according to the tenor of the promissory notes. The holder alone can sue. Nobody else but holder can maintain an action on the promissory notes; (2) one of the joint promisees cannot file a suit. Dr. Das relied upon Section 45 of the Indian Contract Act and the cases reported in (1911) ILR 38 Cal 342 at p. 350, (Hussainara Begum v. Rahimunnessa Begum) and AIR 1957 Andh Pra 688, (Verm Soorayya v. Katuza Begum). He also relied on Sections 32, 78 and 82 of the Negotiable Instruments Act and referred to ILR 58 Cal 752 = (AIR 1931 Cal 387), (Hare Kishore v. Gura Mia Chowdhury) and ILR 59 Bom 573 = (AIR 1935 Bom 343), (Kamal Kant Gopalji v. Madhavji Meghji).
20. Mr. Ashim Ghose, the learned counsel for the plaintiff relied on Section 8 of the Negotiable Instruments Act and submits that (I) the holder can file a suit under Section 8. On the face of the documents Bejoy is the holder or at least one of the holders. (2) Bejoy Kumar Karnani can keep and is entitled in his own name to the prossession of the promissory notes. (3) Either of the three can keep the promissory notes in his possession. (4) Bejoy Kumar Karnani is entitled in his own name to the possession and has right to discharge the promissory notes. This is admitted in the last sentence of paragraph 2 of the Written Statement. Mr. Ghose relied on AIR 1940 Bom 164, (Zujya Pascol Damel v. Manmohandas Lallubhai Pratap).
21. The question shortly is whether the plaintiff Bejoy Kumar Karnani for self and as Karta of the Mitakshara Joint Family consisting of himself and his two sons Chandra Kumar and Sudarshan Kumar can institute this suit. As to the question whether the plaintiff can be said to be the 'holder' of the promissory notes, it is necessary to consider Sections 8, 78, 81 and 82 of the Negotiable Instruments Act (Act 26 of 1881). Section -- 8
The 'holder' of a promissory note, bill of exchange or cheque means any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto.
Where the note, bill or cheque is lost or destroyed, its holder is the person so entitled at the time of such loss or destruction.
Section -- 78
Subject to the provisions of Section 82, Clause (c) payment of the amount due on a promissory note, bill of exchange or cheque must, in order to discharge the maker or acceptor, be made to the holder of the instrument.
Section -- 81
Any person liable to pay, and called upon by the holder thereof to pay, the amount due on a promissory note, bill of exchange or cheque is before payment entitled to have it shown, and is on payment entitled to have it delivered up, to him, or, if the instrument is lost or cannot be produced to be indemnified against any further claim thereon against him. Section -- 82
The maker, acceptor or indorser respectively of a negotiable instrument is discharged from liability thereon--
(a) to a holder thereof who cancels such acceptor's or indorser's name with intent to discharge him, and to all parties claiming under such holder;
(b) to a holder thereof who otherwise discharges such maker, acceptor or indorser, and to all parties deriving title under such holder after notice of such discharge.
(c) to all parties thereto, if the instrument is payable to bearer, or has been indorsed in blank, and such maker, acceptor or indorser makes payment in due course of the amount due thereon.
22. As to the meaning of the term 'holder' it is to be noted that Bhashyam and Adiga on Negotiable Instruments Act (26 of 1881) 12th Edition states that 'the definition of the term 'holder' in Section 8 of the Negotiable Instruments Act is not happy. The definition, however, seems to have been borrowed from a passage of Byles on his book 'Bills' (13th Edition), which does not find a place in the later editions. In this connection the definition of 'holder' in Section 2 of the English Bill of Exchange Act, 1882 may be compared : under the English Act, 'that holder means the payee or endorsee of the bill or note who is in possession of it or the bearer thereof.
23. There is considerable divergence of judicial opinion on the question raised in this case. There are two schools of opinion. One is that the holder only has a right to bring a suit on the promissory notes even if he is not the true owner. The true owner has no locus standi to bring a suit on the footing of the note because the property in the note including the right to receive or recover the amount due on it is vested in the holder and nobody else unless it has been transferred to the plaintiff bv process prescribed by law, e. g. by endorsement and delivery.
24. The other School of opinion is that reading Section 8 and Section 78 together, it is clear, that the person to whom the payment should be made in order to discharge the maker or the acceptor from all liability under the instrument is the 'holder' of the instrument. The holder of the promissory notes is essentially the person who is entitled in his own name to possession thereof. The term 'entitled in his own name' is very significant. The term 'holder' does not include a person who though in possession of the instrument has not the right to recover the amount due thereon from the parties thereto. Thus, in order to discharge the maker or acceptor from the liability, payment must be made to the payee or the holder of the instrument. The real owner of the note can sue on the note, provided he is in a position to obtain a good discharge of liability from the maker or acceptor of the note. The former view will appear from ILR 58 Cal 752 = (AIR 1931 Cal 387) relied on by Dr. Das and the latter view will appear from the case reported in AIR 1947 AH 52, (Lachmi Chand v. Madan Lal Khemka). In a very well-considered judgment by Wanchoo, C. J. (as he then was), and Modi, J. reported in (Bhagirath v. Gulab) the above mentioned divergent judicial opinion on the point has been considered and a number of cases relating to each of the two views is given.
25. In ILR 58 Cal 752 = (AIR 1931 Cal 387) it was held by the Division Bench of this Court that it was the holder of the promissory note who alone is entitled to maintain a suit on the note for recovery of money due thereon. A true owner, who is not a holder, cannot maintain a suit on a promissory note even though the holder is admittedly his benamdar and is made a party to the suit. The property in a promissory note including the right to recover the amount thereon is vested by statute in the holder of the note. In this case, the promissory note purports to have been accepted by the principal defendant (defendant No. 1) in favour of the pro forma defendant (defendant No. 2), but the plaintiff claimed to have advanced money and to be the real or the beneficial owner of the note. The plaintiff alleged that the pro forma defendant was merely his benamdar. In ILR 55 Cal 551 = (AIR 1928 Ca! 148), (Brojo Lal Saha Banikaya v. Budh Nath Payarilal & Co.) a contrary view of law on this point was taken by another Division Bench of this Court. The head-note of the report runs thus:
'Where one Pyarilal, the holder of a promissory note, sued thereon in the name of his firm, the names of the four persons, who were partners of that firm may be taken to have specifically stated in the plaint, and all of them may be considered to have joined as plaintiffs.'
26. In Wanchoo, C. J. (as he then was) and Modi, J. were of opinion that Section 78 should not be construed to mean that the right to institute a suit on the basis of the instrument specified in the section vests merely in the holder and no other person whatsoever. The learned judges agreed, with respect, with the view taken in ILR 55 Cal 551 = (AIR 1928 Cal 148) and similar other cases so far as it accords to what is stated in the judgment.
27. In view of the conflicting decisions of the Calcutta High Court and also of other High Courts the reasoning of the decision reported in AIR 1940 Bom 164, relied on by Mr. Ashim Ghose, appeals to me very much. In the Bombay case, the question was whether Hindu coparceners governed by the Mitakshara Law carrying on a joint family business can institute in their individual name a suit to recover a debt on a promissory note obtained in the name of the family firm. It was held, that the coparcenery can be described as the holder of the note, if it was made as in this case in the collective or business name and therefore in its own name within the meaning of Section 8 and action brought by all adult coparceners, who are capable in law of giving satisfactory discharge to recover the debt on the promissory note executed in their trade name, is maintainable. It seems to me, that the reasoning of the Bombay case is sound and I respectfully agree with the same. In the instant case. Bejoy Kumar Karnani is the person who is entitled to possession of the promissory note and admittedly, he was in possession of the promissory note before the same was lost. Bejoy Kumar Karnani can give discharge to the promissory note. According to the defendant, the promissory note was discharged by Bejoy Kumar Karnani on payment by him. It was proved before me that Bejoy Kumar Karnani was the karta of the joint family business and Chandra Kumar and Sudarshan Kumar were the minor sons and the joint family business was carried on at that time by Bejoy Kumar.
28. The peculiar feature of a Hindu coparcenary and Hindu joint family business is that a karta can file a suit in his own name describing himself as karta and also can give discharge to the debts. The only question is whether in view of the provisions of the Negotiable Instruments Act a karta can be prevented from describing himself as Karta and file a suit as such. In the Bombay case, the learned Judges held that law does not deprive the coparceners of their right to prove that the name in the note is their assumed name and that they are entitled to the note in their own name. A coparcener can be described as the holder of a note if it was made in its collective or business name and the action brought by all coparceners who are capable in law of giving satisfactory discharge to recover the debt on the promissory note executed in their trade name is maintainable.
29. Having regard to the admitted facts in this case, I think, Bejoy Kumar could say that he was at the date of the execution of the promissory note the karta of the joint family consisting of himself and his two minor sons Chandra Kumar and Sudarsan. He was actually in possession of the promissory note till the date of the loss of the same. He was entitled to possession of the promissory note and he could give discharge to the promissory note.
30. In this connection there is also another point which has to be considered. Dr. Das admits that if the suit was on original consideration then it would have been possible to file the suit as framed; but he says that it is not so on the pleading. It is true that the plaint has not been artistically drafted by pleading the alternative case on the original consideration; but in paragraph 3 of the plaint the acknowledgment of the receipt by the defendant of the two sums of Rs. 5,000/- and 12,000/- under the promissory notes has been pleaded and true copies of the receipts and/or vouchers dated March 21, 1958 and September 8, 1958 are also annexed. In my view, the suit is not only on the promissory notes but the plaintiff has also pleaded that the defendant has received the money, viz. Rs. 5,000/- and Rs. 12,000/- and executed the receipts for the same. In the voucher on the top it is stated (Bejoy Kumar Karnani and others) and at the bottom it is stated -- 'for Bejoy Kumar Karnani & Bros. Sd/- Karta, Signature'. On the back of the voucher the defendant has put his signature showing that he has received the amounts. The vouchers and the receipts are annexed to the plaint. Under the decision of the Supreme Court reported in : 3SCR1002 , a suit may be filed by manager or karta representing the family and karta can represent the family effectively in a proceeding even though he is not named as such. Here, the defendant knew that Bejoy Kumar was the karta of the joint family. Bejoy Kumar was advancing money to the defendant as such karta. This will clearly appear from the voucher or receipt. The defendant signed the receipt on the reverse of the voucher. In my view, the suit is not merely on the promissory note but also on the advance made by the plaintiff to the defendant.
31. In view of the above matter, I hold that the plaintiff is entitled to file a suit as such karta of the joint family.
32. With regard to issue No. 4, my answer is that the suit is not bad for nonjoinder of parties.
33. In the premises, there will be a decree for the amount of Rs. 17,684.22 P., interest on the decree at 6% per annum and costs. There will be a stay of operation of the decree for four weeks.