SOMASUNDARAM CHETTIAR Vs. NARASIMHA CHARIAR

JUDGEMENT

(1.) The second defendant, a Hindu widow, who is now dead, sold to the first defendant on the 31 March 1900 some property inherited by her from her husband for the sum of Rs. 15,000. Of this amount, Rs. 5,000 were left in the hands of the first defendant, who gave for it the promissory note sued on which was made payable on demand to the payee, or order, with interest at 9 annas per cent, per annum. At the same time the second defendant handed to the first defendant the letter (Exhibit IX) which runs as follows : "You will ever from the 1 of May be paying interest to me on account of the (promissory) note for Rs. 5,000 executed this day by you in my favour, the interest for every month being sent on the first of the next month. I shall take the above rupees five thousand from you after giving jivanamsam (maintenance money) to my mother-in-law, and obtaining a release bond; or I will take the said rupees five thousand after the lifetime of my mother-in-law."

(2.) The interest due on the promissory note was paid up to the e October, 1900. On the 25 December of that year the note was endorsed to the plaintiff, a Nattukattai Chetti, by the second defendant, the endorsement being as follows : "As I have received the principal sum of this note (Rs. 5,000) five thousand, and the interest (due) from the mon November, of this year from Devakottai A.R.P. Somasundaram Chettiar Avargal on the 25 December 1900, the said principal sum of Rs. 5,000 and the subsequent interest from the month of November aforesaid should be paid to the said Somasundaram Chettiar Avargal or the order of the said person."

(3.) The Subordinate Judge dismissed the suit being of opinion that the plaintiff paid no consideration for the endorsement to him and that the plaintiff was aware of the arrangement between the defendants evidenced by the letter (Exhibit IX). In this appeal these findings were impeached, and it was further contended that, there being no question about the consideration for the promissory note itself, the plaintiff, even if not as the holder in due course of the note, was entitled to recover in spite of the findings of the Subordinate Judge, inasmuch as the promise on the part of the second defendant was a covenant not to sue for a limited time only and therefore no defence to such an action as the present. Apart from the presumption in favour of the plaintiff under Section 118 of the Negotiable Instruments Act, the evidence as to the payment of consideration for the endorsement is all one way. He himself says he paid Rs. 5,000 in currency notes and silver coin. Chidambaram Chetti, a very well-to- do trader and a relation of the plaintiff, supports that evidence and proves that the money paid by the plaintiff to the second defendant was lent by him to the plaintiff for the purpose. He adds that the said amount had been received by him in Madras four days previously from his branch place of business in the Coimbatore District and produces his codjan account containing entries regarding the receipt of the money and the payment thereof to the plaintiff. Srinivas Aivangar, gumastah of Chidambaram Chetti, who brought the money from Coimbatore, gives evidence to the same effect as that of Chidambaram Chetti and of the plaintiff, and proves his attestation to the endorsement. Section Gurusami Chetti, another attesting witness to the endorsement, who was a friend of the second defendant and who apparently brought about the negotiation of the note, also testifies to the payment to the second defendant As against this the first defendant adduced no evidence on this point. The second defendant, who was alive at the time of the trial, was cited on behalf of the plaintiff but was unfortunately not examined, the Subordinate Judge having refused either to issue a commission for her examination or to compel her appearance as a witness though the plaintiff applied for the issue of a warrant for her production, when she, on the Subordinate Judge's refusal to issue the commission for her examination out of Court, declined to appear as a witness in Court.