A.S. NAGAPPA CHETTY Vs. GRIDARIDASS TIKAMDAS

JUDGEMENT

(1.) THIS Civil Revision Petition is directed against decree of the Court of Small Causes, Madras in N.T.A. No. 358 of 1954. The second defendant is the petitioner. The suit was filed by the respondent on a promissory note executed by the first defendant. The second defendant was sought to be made liable for the debt due by the first defendant on the basis of a letter of guarantee, Exhibit P -2 alleged to have been executed by him. That letter, Exhibit P -2 bears a date later than the date of the promissory note. The case for the plaintiff in regard to the letter of guarantee was two -fold. The first was that it was supported by independent consideration, namely respondent giving time for payment by the debtor and secondly, that it was only a renewal of his earlier letter of guarantee given on the date of the promissory note. The first defendant was ex parte but the second defendant contested the claim by disputing the genuineness of Exhibit P -2 and also its relation to the suit debt. The learned trial Judge decreed the suit against the first defendant but dismissed the same against the petitioner, second defendant. He rejected the second defendant's contention that Exhibit P -2 was given in relation to his own indebtedness to the plaintiff but held that as it bore a date later than the date of the promissory note it was not supported by consideration. He, however, did not give a definite finding on the question whether Exhibit P -2 was in renewal of an earlier guarantee given by the second defendant to the plaintiff in respect of the suit debt. The plaintiff filed an application for new trial under Section 38 of the Presidency Small Causes Courts Act. The learned Judges of the Full Bench of Small" Causes Court who heard the new trial application held that the question of consideration for the guarantee would not arise if Exhibit P -2 was a renewal of an earlier letter of guarantee. In that view they considered the question of fact whether Exhibit P -2 was in fact a renewal of an earlier letter of guarantee given by the petitioner in respect of the suit debt. They held that Exhibit P -2 was in renewal of a contemporaneous unstamped letter of guarantee executed by the petitioner on the date of the suit debt. In passing I may mention that in coming to this conclusion the learned Judges omitted to consider one or two relevant circumstances, namely, as to what was the nature of the guarantee, when was it given, who was in custody of that letter of guarantee and why was it not sought to be produced into Court. It is unnecessary to pursue this point further in view of the fact that I propose to send the case back for rehearing by the trial Judge.

(2.) THE learned advocate for the petitioner has rested his case on the question of jurisdiction of the Judges constituting the Full Bench to adjudicate on a question of fact. As stated already there was no finding given by the trial Judge on the question whether Exhibit P -2 was in fact a renewal of an earlier unstamped letter of guarantee. That fact became relevant only after the Full Bench held that the question of consideration would be immaterial if really Exhibit P -2 was a renewal of an earlier guarantee. In such circumstances it is well -settled that the Full Bench of the Small Causes Court has no jurisdiction to give a finding on such a question of fact. In Sai Sikandar Rowther v. Ghouse Mohidin Marakayar, (1916) 32 M.L.J. 213 :, I.L.R. Mad. 355, the second question that was referred to the Full Bench was whether the Full Bench of the Small Causes Court sitting under Section 38 had no jurisdiction to decide question of fact when the question of fact first arises before it in consequence of its finding on another question of fact or law. That question was a answered in the negative. At page 364 of the Report Wallis, C.J. observed:

(3.) A similar view was taken by Basheer Ahmed Sayeed, J., in Nataraja Mudaliar v. Ponnukannammal : (1949)2MLJ737 . The Full Bench of the Court of Small Causes has, therefore, no jurisdiction to give a finding for the first time as to whether Exhibit P -2 was a renewal or not.