HARIPRASHAD NARAYANJEE JAIWAL Vs. CHANDROJIRAO SAMBHAJEERAO ANGRE

JUDGEMENT

(1.) THE only question involved in this second appeal is regarding the liability of the appellant as a surety.

(2.) THE facts of the case are that the plaintiff-respondent was the Jagirdar of the village Nevari Bhavrasa which included a Forest area known as Karanaved Forest. The Jagir was then under the Court of Wards. The Forest Officer in charge of this forest put up for sale by auction the rights of exploitation of the same on 25-111944 in accordance with the terms and conditions laid down in the sale-proclamation. The sale was knocked down in favour of Abdul Hamid defendant No. 1 for a sum of Rs. 4,105/-and thereafter an agreement was executed by Abdul hamid after the auction sale was sanctioned On 11-12-1944 by the superintendent Court of Wards, under whose charge the said estate had been placed by the Government order. Intimation of this sanction was given to Abdul hamid on. 22-12-1944. Later, as contemplated by the terms of auction sale, the purchaser Abdul Hamid executed an agreement incorporating the terms and conditions on which he was entitled to exploit the said forest. The material terms regarding the payment of the auction amount of Rs. 4,105/- were as under : first instalment :5-4-1945. Second instalment : 1- 10-1945. Third instalment : 1-2-1946. Fourth instalment : 30-4-1946. The purchaser was also required to secure a surety-bond for the payment of the dues on the dates as would be fixed. Abdul Hamid paid the first instalment on 5-41945 and submitted the agreement duly executed in accordance with the agreed terms on the same date. On the following day the surety-bond executed by hariprashad was submitted. It mentioned the fact of payment of Rs. 1,026/- of the first instilment on 5-4-1945 and contained a stipulation by the surety that the balance of the sale-price Rs. 3079/- would be paid in accordance with the terms of the agreement executed by the principal debtor and that in case any default was committed in payment as per agreement the same would be recovered personally from Mm. The surety bond was accepted. Thus as contemplated in this surety bond the due dates of payment of second, third and fourth instalments were as indicated above. However the principal debtor failed to pay the second instalment by 1-10-1945. He then approached the authorities whereupon the due dates of payment were altered to 1-1-1946, 1-3-1946 and 30-5-1946 pursuant to the superintendent's order No. 568 dated 22-12-1945. There is no dispute as regards the appellant having stood surety for payment of the dues of three instalments amounting to Rs. 3,079/ -. The dispute relates to alteration of the due dates of payment without reference to the surety as indicated above, at the trial it was contended on behalf of the surety that he was discharged by reason of this alteration and reliance was sought to be placed upon the terms of section 135 of the Contract Act in that connection, The answer of the plaintiff to this contention as indicated in the rejoinder filed on his behalf, is that in the first place this alteration of dates did not involve any material change and in the second place the surety had notice of this alteration and subsequent to this alteration, when the principal debtor committed default and the surety was called upon to pay, he accepted the correctness of the dues against the principal debtor as shown in the notice dated 19-4-1946 and asked for time without ever challenging his liability therefor. Not only this he actually executed an agreement dated 14-6-1946 for the payment of the amount of the third and final instalment falling due on 30-5-1946. He thus should, according to plaintiff, be taken to have assented to the grant of time to the principal debtor. The trial Court's finding on this controversy is that in the first place in view of the terms in surety-bond that the surety was bound to secure the payment if instalment on dates which might thereafter be fixed by the department, he was bound not only by the dates initially fixed but also dates which might be fixed later on. Assent to the alteration without reference to the surety under an agreement between the principal debtor and the department had thus been given beforehand in the surety-bond itself and no further assent was therefore needed. In the second place, according to it, even assuming that the assent of the surety was needed to the alteration as contemplated under Section 135 of the Contract act, that assent could have been given even after the alteration had been agreed to between the creditor and the principal debtor and that in the present case such assent can be inferred from his conduct in acknowledging the dues after the receipt of notice, in asking for time for payment and in executing a fresh agreement with reference to his liability on the basis of the altered dates. The trial court in this connection referred to the decision in AIR 1935 PC 21, Pratapsingh v. Keshavlal and relied upon the observations of the Bombay High Court in AIR 1932 bom 168, Keshavlal v. Pratapsingh. It was not prepared to hold that the signature of the defendant upon Exs. 6 and 9 had been obtained by Mr. Pancholi under coercion, although in its view even on assumption that Ex. 9 had been obtained by coercion that would not affect his conclusion that the surety had assented to the alteration of the dates since he had put his signature upon Ex. 6, had sent the application Ex. 8 by post and had kept silent in spite of notices Exs. 10 and 11. The learned trial judge had made specific reference to the statement of Kurban ahmed in this connection.

(3.) THE appellate court practically confirmed this finding and held that the defendant had assented to the alteration of the dates and was therefore not discharged,