S GURUSWAMI ACHARI Vs. VENGIDUSWAMI ACHARI

JUDGEMENT

(1.) THIS second appeal involves a question of some interest, with regard to the applicability of the exception or proviso enacted as the last part of Section 28 of the Negotiable Instruments Act, 1881. The brief facts are as follows:

(2.) THE suit was instituted by the plaintiff (respondent) in the court of the learned subordinate Judge of Dindigul for recovery of a sum of Rs. 5000 on a promissory note executed on 9th February 1953 by the defendant in favour of the plaintiff. The plaintiff further alleged that the suit was in time, for a sum of Rs. 250 had been paid and endorsed on the instrument on 5th January 1956. I may immediately state that the case of the plaintiff presents no difficulty, ex facie, for it is not disputed that the promissory note was executed, and that it was supported by consideration in the shape of a loan advanced by the plaintiff.

(3.) THE very important question is whether the defendant (appellant) did or did not take the plea which would entitle him to invoke the benefit of the principle enacted as the last part of Section 28 of the Negotiable Instruments Act. I might immediately state that the learned District Judge differed from the trial court, in the first appeal, and came to the conclusion that the defendant (appellant) could not raise this plea at all, as the necessary averments had not been made at the trial. Since this is the single cardinal issue upon which the entire appeal turns, I think it is important to extract and set forth the observations of the learned district Judge in the first appeal. They occur in paragraph 116 of his judgment and are as follows: