RAMASWAMY BHAGAVATHAR Vs. SUNDARARAJA CHETTI

JUDGEMENT

(1.) In support of this second appeal it is urged that the plaintiff (appellant) is entitled to a decree against the 5 defendant (the 1 respondent), firstly, because the 5 defendant has not proved that he suffered any damages for want of notice of dishonour of the bill, secondly, because no notice of dishonour is necessary, since the 5 defendant, the drawer, and the 6th defendant, the drawer and acceptor, are partners, and thirdly, because the 5 defendant received notice of dishonour of the bill by the acceptor, within the# meaning of Section 30 of the Negotiable Instruments Act.

(2.) The 1 contention is governed by Section 98(c) of the Negotiable Instruments Act which runs as follows--" No notice of dishonour is necessary when the parties charged could not suffer damage for want of notice". It is clear that the onus is upon the plaintiff who relies upon this exception to the general rule enacted by Section 30,that the drawer of a bill of exchange is bound, in case of dishonour by the drawee or acceptor thereof, to compensate the holder provided due notice of dishonour has been given to or received by the drawer, to establish and prove that the 5 defendant could not have suffered damage by reason of notice not having been given to him of the dishonour of the bill by the 6 defendant Moti Lal V/s. Moti Lal I.L.R. 6 A. 78. The plaintiff did not allege in the plaint that the 5fh defendant could not suffer damage for want of notice, nor has any such issue been raised and proved.

(3.) In support of the 2nd contention, the learned pleader for the appellant relies on the English case of Porthouse V/s. Parker 10 R.R. 637. The decision in that case is virtually reproduced in Section 98(e) of the Negotiable Instruments Act which runs as follows: No notice of dishonour is necessary to charge the drawers when the acceptor is also a drawer.