RAMA KRISHNA IYER Vs. SANKARARAMA IYER

JUDGEMENT

(1.) First defendant had executed Ext. A pronote dated 9.1.1113 in favour of the 2nd defendant who endorsed it to the plaintiff on 7.3.1113. On demand being made by the plaintiff, the first defendant refused to pay the amount due under the note. Hence plaintiff instituted the present suit against defendants 1 and 2. The second defendant alone resisted the suit contending that since no notice of dishonour was given to him by the plaintiff he is not liable for the plaint claim. The Trial Court repelled this contention and decreed the suit even as against the second defendant. The decree was confirmed by the lower appellate court. The second defendant has therefore come up in second appeal.

(2.) It is because the second defendant is an endorser of Ext. A pronote that he is sought to be made liable for the amount due under it. In order that he may thus be made liable it is essential that notice of dishonour of the instrument should have been given to him by the holder thereof. Such notice must be given within a reasonable time of dishonour. The exceptions to the rule regarding notice of dishonour are enumerated in S. 100 of the Negotiable Instruments Act (Act II of 1075 - Travancore). In the present case, plaintiff did not plead the benefit of any of these exceptions. On the other hand it was expressly stated in the plaint that due notice of dishonour had been given to the second defendant. This allegation was denied by the second defendant and the parties have joined issue only on this question. Both the lower courts have concurrently found that plaintiff has failed to give to the second defendant due notice of dishonour of Ext. A pronote. consistent with this finding the proper decree to be passed in the case was to exonerate the second defendant from liability for the plaint claim.

(3.) Even though plaintiff has not raised a plea that the second defendant has not sustained any damage for want of notice of dishonour, it is seen that the lower courts proceeded to consider this question. It has also been found that the second defendant has not suffered any actual damage and as such the present case comes under Cl. (c) of S. 100 of the Negotiable Instruments Act and that the plaintiff is entitled to get a decree against the second defendant also. In the nature of the pleadings in this case, the lower courts were not called upon to consider the question whether plaintiffs claim comes under Cl. (c) of S. 100. It is wrong for the court to travel beyond the limits of the pleadings in the case and to make out a case for either of the parties. Even as an alternative case plaintiff had not pleaded the benefits of S. 100, Cl. (c). On the other hand it is seen that in the lower appellate court also he had filed an objection memorandum maintaining that the Trial Courts finding that no notice of dishonour was given to the second defendant is wrong. In view of such a persistent stand taken by the plaintiff, the question whether the case falls under any of the exceptions mentioned in S. 100 did not arise at all.