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D.N. Shaha and Co. Vs. the Bengal National Bank Ltd. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal302,60Ind.Cas.940
AppellantD.N. Shaha and Co.
RespondentThe Bengal National Bank Ltd.
Cases ReferredGlasscock v. Balls
Excerpt:
promissory note payable on demand, when overdue. - .....case is clearly distinguishable. there it was ruled tint, for purposes of the law of limitation, a note payable on demand is a present debt and is due and payable at once without demand. as explained in norton v. ellam (1837) 2 m. & w. 461 : 1 m. & h. 69 : 1 jur. 433 : 6 l.j. (n.s.) ex. 121 : 46 e.r. 616 : 150 e.r. 839, rowe v. young (1820) 2 brod. & b. 165 : 2 bligh 391 : 129 e.r. 921 : 21 r.r. 91, moltby v. murrels (1860) 5 h. & n. 813 : 29 l.j. ex. 377 : 2 l.t. (n.s.) 362 : 120 r.r. 839 : 157 e.r. 1405, no demand is necessary before bringing an action upon a note payable on demand, because its payment is a duty which attaches the moment the loan is given and the note is made. to put the matter differently, the creditor cannot extend the period of limitation by omission to make a.....
Judgment:

Asutosh Mookerjee, J.

1. This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Fletcher in a suit for recovery of money due on a promissory-note.

2. On the 28th August 1912, the defendant arm executed a promissory-note in favour of B.N. Das and Co. in the following terms:

On demand I promise to pay to B.N. Das and Company or order the sum of Rs. 2,500 only, with interest thereon at the rate of 12 per cent per annum till the date of realisation, for value received in cash.

3. On or about the 10th January 1914 B. N. Das & Co, for valuable consideration, endorsed the promissory-note in favour of the plaintiff Bank. Notice was duly given by the plaintiff Bank to the defendant first, but as no payment was made in response to repeated demand, the Bank instituted this suit on the 27th August 1915. The defendant firm urged that the Bank were not bona fide holders in due course and for value, and that the note had been discharged by the firm before the endorsement to the Bank, Mr. Justice Fletcher has overruled these contentions and has decreed the suit.

4. The evidenee leaves no room for doubt that, at the date of the endorsement, B.N. Das & Co. were heavily indebted to the Bank and that the Bank were endorsees for value. This, indeed, would be the presumption under Section 118, Clause (a) of the Negotiable Instruments Act (1681). Section 9 shows that the Bank became holders in due course if they obtained the note before the amount because payable and without having sufficient cause to believe that any defect existed in the title of the person from whom they derived title. There can be no question, we think, that the Bank acted in good faith and the controversy has centred round the question, when did the amount mentioned in the promissory note become payable Mr. Avetoom has contended that the promissory-note became payable from the moment of execution and has relied upon the decision in Brojendro Kissore v. Hindustan Co. operative Insurance Society 89 Ind. Cas. 705 : 41 C. 978 : 25 C.L.J. 218 : 21 C.W.N. 482. In our opinion, that case is clearly distinguishable. There it was ruled tint, for purposes of the law of limitation, a note payable on demand is a present debt and is due and payable at once without demand. As explained in Norton v. Ellam (1837) 2 M. & W. 461 : 1 M. & H. 69 : 1 Jur. 433 : 6 L.J. (N.S.) EX. 121 : 46 E.R. 616 : 150 E.R. 839, Rowe v. Young (1820) 2 Brod. & B. 165 : 2 Bligh 391 : 129 E.R. 921 : 21 R.R. 91, Moltby v. Murrels (1860) 5 H. & N. 813 : 29 L.J. Ex. 377 : 2 L.T. (N.S.) 362 : 120 R.R. 839 : 157 E.R. 1405, no demand is necessary before bringing an action upon a note payable on demand, because its payment is a duty which attaches the moment the loan is given and the note is made. To put the matter differently, the creditor cannot extend the period of limitation by omission to make a demand, and time runs against him from the date of the note, on the principle that the cause of section arises instantly on the loan and the contrast on the note is in a state of being broken perpetually. Clearly, these principles have no application to a case under Section 9 of the Negotiable Instruments Act. The true rule applicable is that, where a note payable on demand is negotiated, it is not deemed to be overdue, for the purpose of affecting the holder with defects of title, of which he had no notice, by reason that it appears that a reasonable time for presenting it for payment has elapsed since its issue. In Brooks v. Mitchell (1811) 9 M. & W. 15 : 11 L.J. Ex. 51 : 152 E.R. 7 Baran Parke observed: 'if a promissory-note payable on demand is after a certain time to be treated as overdue, although payment has not been demanded, it is no longer a negotiable instrument. But a promissory-note payable on demand is intended to be a continuing security; it is quite unlike the case of a cheque which is intended to be presented speedily.' The Court accordingly overruled the contention based on the analogy of the rule applicable to the decision of the question of limitation. Similarly, in Barough v. White (1825) 4 B. & C. 325 : 2 Car. & P. 8 : 6 D. & R. 379 : 3 L.J. (O.S.) K.B. 227 : 104 E.R. 1080, Bay ley, J, observed that the fact that the note was made payable with interest implied that it would be in negotiation for sometime. The same view was adopted by the Court of Appeal in Glasscock v. Balls (7). Consequently, this promissory-note was not overdue when it was transferred to the Bink who became holders in due course The suit has been rightly decreed by Mr. Justice Fletcher and the appeal must be dismissed with costs.

Chaudhuri, J.

5. I agree.


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