VAIYAPURI PANDARAM Vs. VSEETHARAMA CHETTIAR

JUDGEMENT

(1.) This is an appeal from a judgment of Jackson, J. The suit under appeal was upon a promissory note executed by defendant 1 on 23 May 1920 for Rs. 1,000. The suit was filed against defendant 1 and against the present appellant as defendant 2 on 14 March 1925. The appellant was impleaded in the suit as defendant 2 because he had executed a document, Ex. B, on 31 July 1921 together with defendant 1. The document is as follows: Both of us are conducting trading business jointly for the benefit of our family. In respect of the debts that have been borrowed (till now) and may be borrowed hereafter from you (the plaintiff) by us jointly and severally and also jointly along with others, we bind ourselves to be liable for them and pay them oft to you, jointly and severally.

(2.) It is clear that as against the appellant the suit was barred by limitation, but it was contended that certain payments made by defendant 1 on 22 March, 1922 and 13 January 1923 saved limitation. But the trial Court and the first appellate Court held that as against the appellant the suit was barred by limitation. But in second appeal, Jackson, J., held that Ex. B was not a contract of guarantee or suretyship at all but was simply a contract of joint and several borrowing and that, as an account had not been rendered and a demand made and no refusal of that demand, there was no breach of contract and that time would not; run until there was such a breach. This point was not raised by the counsel in the course of his argument before Jackson, J., but was one taken by our learned brother himself. He felt that it was open to him to take the point because, in his view, it was not suggested in the plaint that Ex. B was a contract of suretyship. But, with respect, my understanding of para. 6 of the plaint is that such a plea was certainly intended; and the case was tried upon that footing. Issues 2 and 3 plainly show this and so does the evidence of the plaintiff which is as follows: Later on I demanded the amount due under plaint pro-note. Then defendant 1 said he had then no money but he would give security. Accordingly the letter of guarantee, Ex. B, was given to me by defendants 1 and 2 on 31 July 1921.

(3.) The appellant's evidence also is important because he says that Ex. B was a guarantee. He says: It was in 1917 that I executed the guarantee, Ex. B. I gave it to plaintiff without putting any date. Plaintiff later on dated it so as to file the present suit.