NAMDEV JAYRAM KHOLE Vs. SWADESHI VYAPARI MANDALI LTD

JUDGEMENT

(1.) It has been found in both the Courts below that the surety bond, Exhibit 18, was not executed and passed on the date, which it now bears, viz., May 31, 1922, but in October 1920. The present is a case between a surety and the person guaranteed, and is accordingly one where the utmost good faith is required. Prima facie, therefore, an alteration in the date of the document, while it is in the possession of the person guaranteed, would be a breach of that good faith.

(2.) I need refer only to two oases, viz., Oodeychand Boodaji V/s. Bhaskar Jagonnath [1881] 6 Bom. 371 and Govindasami V/s. Ruppusami [1889] 12 Mad. 239, to illustrate that proposition. Oodeychand V/s. Bhaskar [1881] 6 Bom. 371 was a case before Sir Charles Sargent and Mr. Justice Melvill, in which there had been an alteration in the rate of interest in one of the clauses of a promissory note. The Court held that the alteration vitiated the note, although the clause so altered was a final clause to which, even if unaltered, the Court would not give effect. The judgment stated (p. 374): The conclusion to be drawn from the English authorities is that an alteration which vitiates an instrument must be such as to cause the instrument on the face of it to operate differently from the original instrument Davidson V/s. Cooper [1844] 13 M. & W. 343; Gardner V/s. Walsh [1855] 5 E. & B. 83; or, as it is expressed in Suffell V/s. Bank of England [1881] 7 Q.B.D. 270; must be one which alters or attempts to alter the character of the instrument itself, and which affects or may affect the contract which the instrument contains or is evidence of.

(3.) Govindasami V/s. Kuppusami [1889] 12 Mad. 239 was a suit on a bond, the date of which had been altered from September 11 to September 25, while it was in the possession of the plaintiff. Fraud was not proved, and the period of limitation reckoned from September 11 had not expired. It was there held by Sir Arthur Collins and Mr. Justice Wilkinson that the alteration was material because it extended the time within which the plaintiff was entitled to sue. Accordingly, the bond was held to be vitiated and the suit was dismissed. A fortiori these cases would apply to a transaction with a surety. Now the instrument, Exhibit 18, we have to deal with, is one in a printed form and purports to refer to past dealings as well as to future ones. It states: Tha sum of Rs. ( ) together with interest is found due. We (the guarantors) jointly as well as severally hold ourselves responsible to pay to the extent of Rs. 2,000 on account of the dues that would be found due on accounts including interest in respect of what is already found due as aforesaid, and what will be found due on account of the hundis and cheques that may be drawn by the said persons and accepted by you or on account of cheques and hundis that will be given by you to them or on account of any other transaction you may enter into with them.