DHIRENDRA NATH MUKHERJEE Vs. NUTBEHARY MUNSHI

JUDGEMENT

(1.) The point to be decided in this is one which is by no means complex but generally presents a certain amount of difficulty. On 19 April 1929 the defendant Nutbehary Munshi delivered to his co-defendant Banerjee a promissory note for Rs. 3,000 in the usual form signed "N. Munshi, agent and attorney to Dr. O.L. Munshi." On 11 January 1932 the note was endorsed over by the payee to the plaintiff who now seeks to recover the amount due upon the note from the defendant N.B. Munshi, the heirs and legal representatives of Dr. O.L. Munshi who died on 1 November 1930, and from the endorser Nitya Ranjan Banerjee. As against the parties who have not appeared the necessary proof has been given. The suit is contested on behalf of the heirs and legal representatives of Dr. O.L. Munshi on the ground that his estate is not bound by a signature in this form. It is submitted in order to make the estate of Dr. Munshi liable that N.B. Mushi signed as agent and not intending to incur personal responsibility. This is not consistent with the case made in the plaint., as Nutbehary Munshi and the legal representatives of Dr. Munshi are both, made parties, and they cannot all be liable and in this connexion..I may observe that N.B. Munshi has not defended the suit. On behalf of the legal representatives of Dr. O.L. Munshi it is contended that the liability is that of N.B. Munshi alone. The authorities cited by learned Counsel for the plaintiff for the purpose of distinguishing them are against him. He has cited Sadusuk Jankidas V/s. Kishan Pershad AIR 1918 PC 146 which was a case in which one Mohanlal signed a promissory note, his name being followed by the words: Acting Superintendent of the Private Treasury of His Excellency Sri Maharaja, the Prime Minister of H.H. The Nizam.

(2.) It is true that he did not use the word "agent" but whether be used the word agent" or "superintendent" does not affect the matter. Their Lordships of the Privy Council took the view that the words which I have quoted are nothing but a description of Mohanlal's position and that there was no signature in the form necessary for an agent signing on his principal's behalf. The case of Elliott V/s. Bax-Ironside (1925) 2 KB 301 was one in which a bill of exchange was signed by two persons followed by the words "Directors, Fashion Fair Exhibition Ltd."The ratio decidendi in that case was that the word director" was word of description only and that there was nothing to show that the signatories to the document signed for and on behalf of the company. Universal Steam Navigation Co. Ltd. V/s. Jamas McKelvie & Co. (1923) AC 492, has also been referred to, and was a case of a charter party. The respondent signed as agent. Lord Shaw of Demfermline in his speech observed: the appending of the word agent to the signature of a party to a mercantile contract is in all cases the dominating factor in the solution of the problem of principal or agent.

(3.) I do not know whether His Lordship intended thereby to make any distinction between mercantile contracts and negotiable instruments, but conceivably that may be so and I rather base myself upon the authorities in which negotiable instruments were under consideration. In R.P. Koneti Naicker V/s. J. Gopala Ayyar (1915) 21 IC 417 the promissory note was in the following form: 12 August 1907 corresponding to 28 Audi Plavanga, promissory note executed to you both: (1) Gopalaiyar and (2) Nagasamier, sons of Soothi Seshaiyar, residing in No. 1, Police Station Lane, Madras town, by R, P. Monati Nayudu Garu, son of Nanjumdappa Nayudu Garu, agent holding power of attorney from the zamindar Dorai Raja Avargal and residing in Vellikurichi village, Mana madura taluk, Madura District. Amount due.to you including principal and interest up to date upon settlement of account of dealings which was standing against the name of Rani Chakkani Ammal on cloths, etc., having been purchased ere this for the Vellikurichi palace, is Rs. 694-6-0. On demand I promise to you this sum of rupees six hundred and ninety four and annas six with interest at Rs. 5-8-0 per cent per mensem from this date either to you or order and shall take this back with endorsement of payment thereon. (Signed) P.R. Konathi Nayudu.