PAULO VARGHESE Vs. ITTYIPE ABRAHAM

JUDGEMENT

(1.) This unfortunate litigation which started in the year 1111 is coming up for hearing in the stage of appeal before this court today. The suit was for recovering a sum of money alleged to be due under a chitty bond executed by defendants 1 and 2. So far as the principal debtors are concerned, the plaintiff has been granted a decree but he wanted to impose a liability upon the legal representatives o one Itty Iype on the ground that Itty Iype was surety for the discharge of the debet. The court below has found that there was no such guarantee and has dismissed the suit as against defendants 3 and 7 to 14. It is from this part of the decision that the present appeal is brought before this court. The allegation in the plaint regarding the contract a guarantee is to be found in paragraph 3 of the plaint. There it is alleged that Itty Iype promised that he would make defendants 1 and 2 discharge the debt to the plaintiff and that he (Itty Iype) would also be personally responsible for the discharge of the debt. Immediately following this averment, there is reference made to certain letters passed by Itty Iype containing this guarantee. At the trial there were four letters produced. These were Exts. A, C, D, and E. The contesting defendants admitted Ext. C, D and E, but denied that Ext. A was passed by Itty Iype who was dead when the suit was filed. The court below on dealing with the evidence, has recorded a finding in halting terms that Ext. A is not genuine. There is also another obstacle in the way of the plaintiff before he can ask for a decree being passed on the strength of the guarantee. From the averment in the plaint it does not appear that there was any consideration for the undertaking alleged to have been given by the surety. Again the nature of the undertaking which is evident from the wording of the four letters above mentioned, is not that Itty Iype would be personally responsible for the discharge of the debt, but that he will see that the debtors repay the debt.

(2.) Dealing in the first instance, with the finding of the court below that Ext. A is not genuine, we are not satisfied that there is any valid reason given for the view taken by the Trial Court. There is feeble reference made to the fact that PW 2 who swore that he had written the latter to the dictation of Itty Iype was employed as the driver of a motor bus which was the property of a Union in which the plaintiff has a financial interest. There is also a statement contained in paragraph 15 of the judgment of the court below that PW 2 had given evidence on behalf of the plaintiff in other cases as well. These cannot certainly be regarded as valid reasons for disbelieving the evidence of PW 2. The whole of his evidence was read out in court. We find that it was not successfully attacked in cross examination. Under the circumstances the statement contained in the judgment of the Trial Court that Ext. A is not genuine, cannot be accepted. We feel that the evidence of PWw 1 and 2 support the case of the plaintiff that the document was signed by Itty Iype the scribe being PW 2. The learned Munsiff in paragraph 16 of the judgment states that he minutely examined the alleged signature of Itty Iype in Ext. A with a microscope. Evidently the Munsiff means a magnifying glass, because it is not possible to study a signature through the microscope. It does not also appear that subordinate courts in this territory are supplied with microscopes for scrutinising signature appearing in documents. This indicates that the Trial Court did entertain some doubt about the genuineness of the signature and not that it was sure on looking at the signature that it could not possibly have been that of Itty Iype. In such circumstances, we see no reason why the evidence of PWw 1 and 2 should have been brushed aside without adequate reason. Therefore since it is a serious thing to indicate that plaintiff has come forward with a forged document, we feel constrained to set aside the view expressed in the judgment of the trail court that Ext. A is not genuine. Even if this document is genuine, the plaintiff would not have surmounted all the obstacles before he can get a decree against the legal representatives of Itty Iype. As already stated, the averment in the plaint does not even indicate that there was any consideration for the promise alleged to have been given by Itty Iype subsequent to the incurring of the liability by the principal debtor. There is no suggestion of any benefit which the creditor was prepared to confer on the principal debtor at the request of the surety. The debt was already contracted and subsequently the alleged surety is stated to have come forward and said that he would be responsible for the discharge of the debt. The creditor did not suffer any detriment at the instance of the surety. This is an obvious instance of a promise which is not supported by consideration and for that reason cannot be enforced in a court of law. Even such a promise is not contained in the four letters which are relied upon in support of the plaintiffs case. As already indicated, the promise given by Itty Iype was that he will see that the debtors will duly discharge their obligation. A promise of this description cannot amount to a guarantee. For these reasons, we are of the view that the conclusion reached by the court below that no liability was incurred by Itty Iype on the averments in the plaint and on the evidence adduced in support of the plaint, is correct. Consequently a decree cannot be passed on the basis of that contract of guarantee against the assets of Itty Iype in the hands of his legal representatives. The appeal must, in the circumstances, be dismissed with costs to the contesting respondents.