SEETHALAKSHMI ACHI Vs. V T VEERAPPA CHETTIAR

JUDGEMENT

(1.) This appeal by the defendants raises an interesting and difficult question of law, and we have taken time to consider our judgment. The case was ably and elaborately argued by both sides and we are indebted to counsel for the assistance rendered by them.

(2.) The plaintiff instituted the suit to recover Rs. 4900 the balance of principal and Rs. 990-7-6 interest calculated according to the vaddi chit-tai making a total of Rs. 5890-7-6 as balance due under a promissory note, Ex. P. 1 dated 19th October 1939 executed by one Meyyappa Chettiar in favour of V. T. Veerappa Chettiar for Rs. 17,696-8-6. This Meyyappa Chettiar, the executant of the note, is the husband of the first defendant, undivided father of defendants 2 and 3. He carried on money-lending business at Dedaya in Burma under the style of S. M. A. M. S. The plaintiff, the payee under the note, carried on also money-lending business at Rangoon under the style of V. T. Firm. In respect of transactions between the two firms in Burma, Meyyappa Chettiar became indebted to the plaintiff in a sum of Rs. 34,500 as per settlement of account dated 30th July 1934. On 7-4-1935 the defendants' agent at Dedaya executed a promissory note to the plaintiff, and under this promissory note there were payments made in 1935 and 1936. The promissory note was lost and on 17th March 1937 for the balance due under the lost promissory note Meyyappa Chettiar executed a promissory note in favour of the plaintiff and also gave a varthamanam.' letter of even date. The promissory note was for a sura of Rs. 26,579-8-1 which was executed in British India at Pallathur. Under this note also, payments were made in 1939, and for the balance due under that promissory note, on 19-101939 the suit promissory note Ex. P. 1 was executed by Meyyappa Chettiar in favour of the plaintiff at Pallathur. There were subsequent payments admittedly made towards this promissory note. The plaintiff filed the suit in 1945 ignoring a further payment of Rs. 5786-5-6 made in Burma by the agent of the defendants to plaintiff's agent Viswanathan Chettiar (P. W. 2) for which a voucher, Ex. D. 1 dated 5-10-1944 was given by the plaintiff's agent to the defendants agent. A payment of Rs. 100 was made at Pallathur to save the promissory note from iimitation and according to the defendants the understanding was that if the note was already discharged by payment in Burma this amount should be refunded.

(3.) The dispute between the parties is with reference to the payment by the defendants' agent to the plaintiff's agent at Burma. In the suit the plaintiff denied the receipt of this amount & also disputed the validity of the payment made to the pltf's agent on the ground that after the invasion of Burma by Japan on 7-3-1942 the agency of Viswanathan Chet-tiar, the plaintiff's agent, came to an end, and that he had no right to give a valid discharge. It was also pleaded that as the payment was in Japanese currency there was no valid payment. It has now been found by the trial court that the plaintiff's case that no payment was made in Burma is false and that, in fact the plaintiff's agent received the amount and credited the same in the account of the plaintiff, Ex. D. 2, maintained by Viswanathan Chet-tiar, P. W. 2 at Burma. It is also further found that this amount Was utilised by the agent to discharge the V. T. firm's liability due to Moulmein C. T. M. N. R. M. N. N. This finding is not now seriously challenged by the respondent plaintiff, and indeed could not be in view of the unimpeachable evidence on which the case of the defendants rests. The plaintiff therefore undoubtedly received the amount and had the full benefit of it, but for reasons best known to himself he has chosen to take up the attitude of calling upon the defendants to pay the amount twice over. The learned Subordinate Judge who tried the suit came to the conclusion that at the material time Burma was not an enemy territory, but as the payment was made in Japanese currency it was not a valid payment. In the result he decreed the plaintiff's suit as prayed for and disallowed the claim of the defendants for a refund of the sum of Rs. 100 based on an agreement to refund the same. This question however is not now in appeal and need not be considered.