THATAYYA Vs. ATMA SINGH

JUDGEMENT

(1.) This appeal by the 6th defendant is directed against the judgment of the Subordinate Judge, Vijayawada, granting a decree against him along with the other defendants for the recovery of Rs. 10,845/- on the basis of a letter of guarantee executed on 31-1-1962 by him along with the defendant Nos. 2 & 5. It is averred in the plaint that on 5-7-1962, the 2nd defendant, for and on behalf of the 1st defendant-firm, of which the defendant Nos. 2 to 6 are the partners, borrowed from the plaintiff a banker and money-lender at Vijayawada, a sum of Rs. 10,000/- under Exs. A-10 to A-12 hundies, payable by 3-10-1962, on the strength of the two letters on continuing guarantee Exs.A-9 and A-1 executed by the defendant Nos. 2 to 5 on 30-10-1962 and the defendant Nos.2, 5 and 6 on 31-1-1962 respectively and also executed another letter Ex.A-13 acknowledging the receipt of Rs. 10,000/- and agreeing to pay interest at the rate of 18% per annum from the due date. The plaintiff had to pay the amount to the Indian Bank and take the hundies, as the difcndants failed to honour the same. There was no reply from the defendant Nos. 1 to 5 to the telegraphic notice Ex:A-2 issued by the plaintiff, but the 6th defendant has replied under Ex.A-3 denying his liability; and the suit is filed on 14-3-1963 against all the defendants for the recovery of Rs. 10,845/- as there was no reply from the appellant also for the suit notice Ex.A-4, dated 2-2-1963. The defendant Nos. 1,3,4, and 5 remained exparate and the 2nd defendant filed a memo on 19-8-1963 submitting to a decree. The appellant the only contesting defendant, filed his written statement contending inter alia that he is a resident of and co-owner of a rice mill at Srikakulam and was the managing partner of Sri Subrahmanyeswara Rice Mills New Contractors Company, Masulipatam, in which the defendant Nos. 2 and 5 have each one anna share,that he was not a partner of the 1st defendantfirm, that when he approached the plaintiff for a loan for his partnership business at Masulipatam, through the 2nd defendant, accompained by the 5th defendant, it was represented to him that it was the practice of the plaintiff to obtain a contemporaneous letter from all the parties admitting their liability to be surety for the ' loan borrowed, that himself and the defendant Nos. 2 and 5 who were present there, signed the unstamped English printed form Ex. A-1 with blanks therein, on 31.1-1962 and borrowed a sum of Rs. 10,000/- undcr the iundies Exs.B-4 and B-5, that Ex,A-1, which is in English unknown to him, was neither read over nor explained to him and that he was unaware of the terms and recitals but subscribed his signature believing the representations, that the amount borrowed under Exs.B-4 and B-5 had been discharged by him on 26-4-1962 and hence, he is not liable to the amount now sought to be reco- vered on the strength of Ex.A-1. The trial Court held that the defendant Nos. 2 to 5 are the partners of the 1st defendant-firm and the 6th defendant has no connection with it, that the hundies Exs. A-10 to A-12 are true and supported by consideration, that Ex.A-1 was not vitiated by any fraud,coercion or misrepresentation as the same has been executed by the defendant Nos. 2, 5 and 6 with eyes wide open and in they must have known that it is the nature of a letter of continuing guarantee, and decreed the suit. Hence, this appeal. The points that arise for determination are: 1) Whether the appellant, ignorant of English intended knowingly to execute Ex.A-1 as a letter of continuing guarantee for the borrowals of the 2nd defendant? 2) whether the transaction under Ex.A-1 is vitiated by fraud, missrepresentation or undue influence? 3) whether the contract under Ex.A-1 is an unconseionable or catching bargain and cannot be enforced in a court of law? With regard to the first point, it has to be considered on whom the onus lies to prove the contents of Ex.A-1 being known to the appellant. Does the burden lie on the plaintiff as contended by Sri Suryanarayana Rao, to prove that the appellant, who is ignorant of English language, know the contents and import of Ex.A-7, or is it on him who has admittedly signed the document, to show that he did not know the contents of it? Mr Venkatrama Saitri, for the respondent-plaintiff, relying upon the decision in Nswshalme Bros v. Road Transport and General Insuranet Co contends that the burden is on the appellant, who signed the document, to prove that he was not aware of the contents of Ex.A-1. The decision in Newsholme Bros v. Road Transport and General Insurance Co. relates to a case where false and untrue statements in an insurance proposal form filled up by the agent were held to be not binding on the Insurance Company which could certainly challenge the claim of the claimant on the ground that false and untrue statements had been made by the party, and the same has no application to the facts of the present case. In Dinohamy v. Balahamy one Don Andris, after the death of his first wife who had left a daughter, Dinohamy, married Balahamy with all the ceremonies, but the marriage was not registered. They lived as man and wife for 20 years and had fight children born to them. After the death of Don Andris, disputes arose between Dinohany and her husband on the one hand and Balahamy and her eight children on the other. Singhe Appu, the husband of Dinohamy, got the signature of Balahamy for a deed purporting to be a deed of agreement where in it was stated that Don Andris had "lived with the said........................Balahamy as his mistress and not having legally married her (eight children born to her) '. Under these circumstances, the Privy Council had to consider whether it was proved that Balahamy had signed the docu. ment knowing the import of the contents of that document. Lord shaw, at page 392, observed:

(2.) I am unable to agree with the contention of Mr. Venkatrama Sastri that by the conduct of the appellant in keeping for a week another form similar to Ex. A-l, in which mention of the amount of Rs. 15,000/- was made though the amount borrowed under Exs; B-4 and B-5 was only Rs. 10,000/- he, a Vysya business man. must be deemed to have known the contents of Ex. A.1. D. W. 1 in his cross examination deposes thus :

(3.) He also asserted in cross-examination that Ex, A-1 was written provisionally on 31-1-1962 at Vijayawada without filling up the date or gaps. The aforesaid itatement of D, W. 1 clearly shows that the copy of Ex. A-1 was not got read over and explained to him or to his other partners. There it no evidence contra adduced by the plaintiff. But, on the other hand, the trend of cross examnation by the plaintiff discloses that the plaintiff is not accepting the giving of another similar form to D. W. 1, nor the same has been produced by him. Accepiing the evidence of D.Ws. I and 2, I find that Ex. A-1 was signed by the defendant Nos. 2,5 &6 on 31-2 1962 at Vijayawada without filling up the blanks relating to date or amount and the contents of it were not read over .and explained to them There is no merit in the argument of Mr. Venkatrama Sastry that it is possible to infer, from the conduct of the appellant in keeping quiet without asking for the return of Ex. A-l after the discharge of the loan taken by him under Ezs. B-4 and B-5, or his omission to give reply to the suit notice or to give particulars in Ex. A-3, the telegraphic reply, that he must be desmed to have known the contents of Ex. A-1.