GARIMELLA MALLIKHARJUNA RAO Vs. MANGIPUDI TRIPURA SUNDARI

JUDGEMENT

(1.) THIS second appeal arises out of a suit brought by the respondent in the court of the District Munsif of Amalapuram to recover a sum of Rs. 1072 -5 -3 being the amount due for principal and interest on a promissory note executed by the appellant defendant in. his favour on 6 -4 -1945. Admittedly, this promissory note was in respect of the amount of principal and interest due under a prior promissory note dated 8 -4 -1942 which again was for the amount due under a still prior promissory note of 1939. The origin of the defendant's liability in fact can be traced to the -first promissory note of 30 -4 -1936. Though by the date of the suit promissory note the Madras Agriculturists Relief Act had come into operation, the amount for which the promissory note was executed represented the amount due under the prior promissory note for principal and interest without taking into account the provisions of the Madras Agriculturists Relief Act, which it is common ground applies to the case inasmuch as the defendant is an agriculturist.

(2.) I agree with Mr. Rama Rao that there is nothing in the plaint or in the evidence of the plaintiff's husband even suggesting the case on which the learned Subordinate Judge rested his decision, namely that there was such a forbearance to sue on the part of the plaintiff as could be treated as sufficient consideration for an agreement to pay the excess amount. The learned Subordinate Judge was therefore wrong in overruling the plea of the defendant as to failure of consideration on this ground which was not set up by the plaintiff.

(3.) IN my opinion, this case is covered directly by the unreported decision of a Division Bench of this Court (Patanjali Sastry and Shahabuddin JJ.) in A. S. No. 290 of 1944 (Mad) (B). In that case too a promissory note was executed for an amount in excess of what was due on the basis of Madras Act 4 of 1938. The main plea of the defendant in that case as well as in this case, was that there was an agreement between the parties that the creditor should only receive an amount due after scaling down under Madras Act 4 of 1938 and not the amount mentioned in the suit note. That plea was not accepted. Alternatively it was also pleaded there, as here, that the suit promissory note was not supported by consideration to the extent of the excess over the sum that was payable under the earlier note after scaling down. The learned Judge accepted the latter plea and held that there was a failure of consideration in respect of the excess amount.