SETH DHANOOMAL PARSARAM Vs. P KUPPURAJ

JUDGEMENT

(1.) THE first and the second defendants in O. S. No. 67 of 1968 on the file of the subordinate Judge of Coimbatore are the appellants in A. S. No. 520 of 1972. This is an appeal filed in forma pauperis, After the presentation of the appeal, the second appellant dies and the learned counsel for the first appellant has filed a memo to that effect and stated that he is one of the sons of the second appellant and he may be recognised as his legal representative. He would also say that he might be brought on record as the legal representative of the deceased second appellant as representative of his estate. We accept the memo.

(2.) THE plaintiff instituted the suit on the foot of four promissory notes. The borrowing were almost consecutively made by the first defendant as the principal debtor and guaranteed by his father the second defendant. They were consecutive in the sense that the borrowings were on the 12th, 13th, 16th and 27th of August 1966. Exhibits A-1 and A-2 are the promissory notes admittedly signed by the first appellant on the 12th and the 27th of August 1966. The consideration paid thereunder is also admitted. Exhibits A-3 and A-4 are two other promissory notes in which the signature of the first defendant is admitted but the consideration said to have been paid thereunder is denied. The plaintiff, however, on the basis of the above four promissory notes filled the present action seeking to recover a sum of Rs. 46,898-24. In the plaint itself he concedes that a sum of Rs. 5,000/- was paid towards Exhibit A-1 debt on 30-31967 and no further amounts were paid under the other three promissory notes. The plaintiff also would rely upon Exhibit A-5, the letter of guarantee executed by the second defendant and seeks for a decree against both the first defendant as the principal debtor and against the second defendant as surety.

(3.) THE first defendant's case is that he had dealings with the plaintiff for a considerable length of time and he would admit liability only as under Exhibits a-1 and A-2 but would deny that he executed the promissory notes exhibited as exhibits A-3 and A-4. His case is that the plaintiff might have used the promissory notes which the first defendant kept with the plaintiff notwithstanding the fact that they have been discharged and the plaintiff has used such discharged promissory notes and filled up the blanks therein and created Exhibits A-3 and A-4. In this sense the first defendant denied liability to pay any amount under Exhibits A-3 and A-4. After a considerable length of time, the first defendant filed an additional written statement stating that in exhibits A-3 and A-4 there are certain material alterations and such alterations of the data in the promissory notes would not entitle the plaintiff to sue on them. The second defendant's (guarantor's) case is that Exhibit A-5 was given at a time when the family was joint and that there was a partition in the family in 1954 and the plaintiff was informed that the letter of guarantee, Exhibit A-5 executed by him would not ensure to any of the transactions that might be entered into between the plaintiff on the one hand and the first defendant on the other after the disruption of the family in 1954. According to him as Exhibits a-1 to A-4 are promissory notes under which monies were borrowed long after the family became divided, Exhibit A-5 cannot be pressed into service by the plaintiff so as create a liability as against the second defendant as a surety for the first defendant.