1. This appeal arises out of a suit on a promissory note. The suit was decreed by the Munsif, but on appeal, the Additional District Judge of Tipperah dismissed it. The note on which the plaintiff sued is worded as follows:
Handnote on condition of payment at sight. To Babu Durga Prasad Sen son of late Gura Prosad Sen inhabitant of Sacbar Pergannah Singair. On the 29th Bhadra 1324. I borrowed Rs. 2,000 for cloth business of you and others at Sachar Bandar. Afterwards owing to non-payment of that amount you have instituted Suit No. 445 of 1910 in the first Court of the Subordinate Judge at Comilla. Now by amicable settlement with you on behalf of the said business (or firm) Rs. 2,000 is settled as due. Not being able to pay this amount in cash I again to-day take this loan of Rs. 2,200 for that business. I will pay interest on this at the rate of 1 per cent. per mensem up to date of re-payment. finis, dated 16th Poush 1317 B.S. Sd. Kali Charan Aiah Roy son of Jagat Chandra Aich Roy of Joynagar, Perganna Singair, Thana Hajigange, District Tipperah.
2. The learned District Judge in interpreting this document has referred also to a previous handnote, as it was on the basis of this handnote that the suit referred to in the document now under consideration was brought and amicably settled. It seems to us that in so doing he has overlooked the fact that the document in suit is a negotiable instrument to which the provisions of Act XXVI of 1881 apply. Section 28 of that Act provides that 'an agent who signs his name to a promissory note, bill of exchange or cheque without indicating thereon that he signs as agent, or that he does not intend thereby to incur personal responsibility, is liable personally on the instrument, except to those who induced him to sign upon the belief that the principal only would be held liable.'
3. Reading this note it will be seen that the defendant did not indicate that he signed it as an agent, nor can we find in the document itself anything which indicates that he did not intend thereby to incur personal responsibility.
4. On the face of it there is nothing in the document which could indicate that any person other than himself would be held liable Several authorities have been cited before us on both sides, but we think it sufficient to refer to the decision of the Judicial Committee in the case of the Firm of Sadasuk Janki Das v. Kishan Pershad 50 Ind. Cas. 216 : 29 C.L.J. 340 : 17 A.L.J. 405 : 25 M.L.T. 258 : 36 M.L.J. 429 : 21 Bom. L. R. 605 : 1 U.P.L.R. (P.C.) 37 : (1919) M.W.N. 310 : 23 C.W.N. 937 : 10 L.W. 143 : 45 C. 663 : 46 I.A. 33 (P.C.) and to the decision of the Madras High Court in the case of Koneti Naicher v. Jatu Gopala Aiyar 21 Ind. Cas. 417 : 38 M. 482 : 25 M.L.J. 425 : 14 M.L.T. 414. We may refer in particular to the remarks of their Lordships of the Judicial Committee at page 347 Page of 29 C.L.J.--[Ed.] of the ruling cited: 'It is not sufficient that the principal's name should be 'in some way' disclosed, it must be disclosed in such a way that on any fair interpretation of the instrument his name is the real name of the person liable upon the bill.' Considering the document by the test of this remark, it is clear that nobody except the defendant can be sued on this bill. Even if it be conceded, as contended on behalf of the respondents, that the reference to the amicable settlement on behalf of the firm shows the firm to be liable, there is nothing in the promissory note to show who the firm were, though it might be possible on a reference to the record of Suit No. 445 of 1910 in the first Court' of the Subordinate Judge at Comilla to ascertain who had been the parties to that suit. It is not to be expected that a person suing on a promissory note should be required to do anything of this sort in order to discover the person against whom he is to bring an action. On this point we decide that the defendant was clearly personally liable. It appears, however, that in the lower Appellate Court other points were taken which were unnecessary to decide, as the appellant succeeded, on the question of his personal liability; It is necessary, therefore, that the appeal should be heard on these points.
5. We accordingly decree this appeal, reverse the judgment and decree of the lower Appellate Court and remand the case for re-hearing on those points raised in the appeal other than issue No. 4, which is decided in the plaintiffs favour.
6. The appellant before us will get his costs in this Court.