CHINNAKUZHANDAI AMMAL Vs. KUZHANDAI VEERASAMI MUDALIAR

JUDGEMENT

(1.) In this case the plaintiff sued on a promissory note executed by the first defendant in favour of the second defendant. The plaintiff's claim was that the promissory note was executed in favour of the second defendant benami for herself. The trial Court dismissed the suit as not maintainable, and against this order of dismissal the present Revision Petition has been filed.

(2.) No direct authority of this Court has been quoted to me but there is an obiter remark of a Full Bench in Subba Narayana Vathiar V/s. Ramaswami Aiyar (1906) I.L.R. 30 Mad. 88 at 90 : 16 M.L.J. 508 (F.B.) which supports the view of the learned District Munsif. That was a suit in which the payee sued the maker of the note who pleaded that the note had been executed in plaintiff's favour only benami for one K and that it had been discharged by payment to the person really interested. It was held by the Bench that evidence to this effect could not be adduced by the defendant. That case is of course different from the present which comes directly under Section 78 of the Negotiable Instruments Act. The learned Judges in Subba Narayana Vathiyar V/s. Ramaswami Aiyar (1906) I.L.R. 30 Mad. 88 at 90 : 16 M.L.J. 508 (F.B.) however, proceeded to remark. We cannot find any English case in which an undisclosed principal has attempted to sue on a negotiable instrument, and we think that the decisions clearly established that an undisclosed principal could not be sued.

(3.) The petitioner relies on a case reported in Brojo Lai Saha Banikya V/s. Budh Naih Pyarilal and Co. (1927) I.L.R. 55 Cal. 551, but unfortunately the remarks there are equally obiter. In that case one P.L. who was the holder of a promissory note sued thereon in the name of his firm and it was held that the names of the four persons who were partners of that firm might be taken to have been specifically stated in the plaint and all of them might be considered to have joined as plaintiffs, and that there was no objection to the suit merely because the plaintiff had joined the other partners with him. Ghose, J. at page 559 observes: This is sufficient for the purpose of deciding the case. But I think it is right that I should express my opinion with regard to the point which has been dealt with by the Subordinate Judge, as the question has been very elaborately argued by the learned Advocates on both sides.