HARIGOVINDAS HARIDAS Vs. JOSNA BANK LTD

JUDGEMENT

(1.) These appeals arise out of two suits instituted by a banking company on two promissory notes for Rs. 5,000 each, Ext. D-1 dated the 19th January 1953 executed by one Narayandas and his brother Hargovindas, and Ext. D-2 of the same date by the same Narayandas and another brother of his, Narotamdas. In both promissory notes the executants jointly and severally promised to pay the sum mentioned. Narayandas had other dealings with the bank. He had a cash credit account on the basis of an agreement dated the 27th March 1952, guaranteed to the extent of Rs. 10,000 by his cousin, Ramdas, for which a prior mortgage by this Ramdas, given as continuing security for his liabilities to the bank, was, under the terms thereof, security. Narayandas had also on the same day as the suit promissory notes executed a third joint and several promissory note in favour of the bank along with Ramdas. This was for Rs. 6,000. These facts are not disputed and appear from Ext. A-3, the plaint in O.S. No. 70 of 1954 of the District Court, Parur, a suit instituted by the plaintiff bank against Narayandas for the recovery of the amounts due from him on account of his cash credit account and his three promissory notes of the 19th January 1953 including the two promissory notes now in suit. Recovery was sought both personally and by the sale of property which Narayandas had mortgaged on 3rd January 1952 to the plaintiff bank for Rs. 25,000 as continuing security for his liabilities then in existence and thereafter to be incurred. In the plaint fin that suit) the plaintiff bank said that it would be instituting separate suits against Hargovindas, Narotamdas and Ramdas in respect of their several liabilities with regard to the same debts; and, so far as Hargovindas and Narotamdas are concerned, it did this by the present suits, O.S. 204 of 1954 and O.S. 30 of 1955 of the District Court, Anjikaimal, which were subsequently transferred to the Sub-Court, Ernakulam and heard by that court as O.S. 205 and 215 of 1956. During the pendency of these suits, the plaintiff bank obtained a decree against Narayandas in the suit in the Parur Court, and in execution thereof, brought Narayandass property to sale and thereby realised a sum of Rs. 20,000 which being adjusted towards the other liabilities of Narayandas and the costs of that suit leaves, it is said, nothing for credit towards the promissory note debts which are the subject matter of the present suits. Both these suits were decreed by the Subordinate Court, Ernakulam, but the plaintiff was disallowed costs on the score that it could have sued Hargovindas and Narotamdas also in its Parur suit. Hargovindas and Narotamdas have appealed against the decrees against them, while the plaintiff has appealed in both suits against the disallowance of its costs. A.S. 660 of 1958 is the appeal by Hargovindas, the defendant in O.S. 205 of 1956, and A.S. 703 of 1958 is the appeal by the plaintiff. A.S. 661 of 1958 is the appeal by Narotamdas, the defendant in O S.215 of 1956, while A.S. 702 of 1958 is the appeal by the plaintiff.

(2.) The defendants have raised the same contentions in the appeals as in the suits. They are:

(3.) Counsel on both sides have argued these questions at considerable length with reference to a wealth of authority, but it seems to me that the questions are essentially simple and that the contentions put forward by the defendants need not detain us long. To take first, the bar of order II, R.2, it is to be noted that the promises in both the promissory notes are joint and several promises. Therefore, the question whether by reason of S.43 of the Indian Contract Act [which as pointed out by the Federal Court in Jainarain v. Surajmull AIR 1949 F.C. 211, in departure from the English law, makes every joint promise in India a joint and several promise in the absence of express agreement to the contrary] the rule in King v. Hoare 153 E.R. 206 is not applicable in India does not arise. The promises we are now considering are expressly joint and several, and, even under the English law, the rule in Hoares case does not apply to joint and several obligations. Now, it seems to me - and this in fact has been said in Hoares case in the last but one paragraph of the judgment - a joint and several bond by two or more persons is, in effect, a joint bond by all of them and a separate bond by each one of them. In the Parur suit, as well as in the present suits (although the Parur suit was partly for the recovery of the same debts as form the subject matter of the present suits) the plaintiff is enforcing the several liabilities of Narayandas, Hargovindas and Narotamdas, not their joint liability. It is as if it were suing them on separate contracts (that the contracts are embodied on the same piece of paper makes no difference) and I think it obvious that the cause of action in respect of separate contracts cannot be the same so as to attract order II, R.2.