RAMASWAMI SASTRI Vs. KALI RAGHAVA AIYANGAR

JUDGEMENT

(1.) I am unable to agree with the learned Subordinate Judge. The defendant in this case assigned Exhibit A, a deed of mortgage executed to him by one Kamuthathamrnal. Exhibit B is the deed of assignment and in that the defendant stipulates "excepting the sum of Rs. 52...no other sum has been received. If any sum is alleged to have been paid in excess and proved, I shall myself be responsible for such turn and pay the same to you with interest." After giving notice to Kamuthathammal, the present plaintiff sued upon Exhibit A in Original Suit No. 356 of 1912 on the file of the Tiruthiraipundi Munsif s Court, and the District Munsif came to the conclusion that Exhibit A was completely discharged and that the plaintiff was not entitled to re-cover anything. Thereupon the present suit was instituted to enforce the terms of the indemnity contained in Exhibit, B. Various defences were raised by the defendant, and one of them was that in the previous litigation the plaintiff acted in collusion with the defendant. The Subordinate Judge in the present case finds that that allegation is not made our. He goes further and says that the present defendant actively helped the plaintiff in that other suit and that the matter was very seriously contested. Therefore, this plea of the defendant fails, The other plea of the defendant, which has apparently found favour with the Subordinate Judge and which Mr. Srinivasa Gopalachari pressed with some insistence, is this, that on the present occasion one Srinivasa Iyengar was examined upon the strength of whose evidence the Subordinate Judge has come to the conclusion that Exhibit 4 was not discharged: and that this witness was asked by the perent defend ant to be summered in the Tiruthiraiprd Munsif s Court but that the plaintiff refused to summon him, and, therefore, on the last occasion the plaintiff did not place before the Tiruthiraipundi Munsif all the available materials to enable him to come to the right conclusion and that consequently the defendant is not liable. There is no doubt that the plaintiff conducted the previous litigation honestly and, if he was under the impression that the evidence of Srinivasa Iyengar was not necessary, it cannot be said that his failure to summon him as a witness amounted to culpable negligence on his part so as to disentitle him to sue on the indemnity clause. In my opinion, the language of the indemnity clause is satisfied when an honest litigation is conducted by the plaintiff and when he seriously puts forward his case before the Munsif. The result of that litigation was to hold that Exhibit A had been discharged. That would amount to proving that nothing was due under Exhibit A.

(2.) I am strengthened in the view I have taken by the decision in Nallappa Reddi v. Vridhachala Reddi 25 Ind. Cas 888 : 37 M. 270. It is there pointed out by the learned Judges that where a person to whom an indemnity was given takes steps which are necessary for laying the foundation for a future claim honestly and with the best of intentions, he is entitled to le indemnified. In my opinion, all the essentials mentioned in Nallappa Reddi v. Vridhachala Reddi 25 Ind. Cas 888 : 37 M. 270 have been found by the Subordinate Judge in the present, case, and the mere fact that Srinivasa Iyengar was, not examined is not a reason for refusing relief to the plaintiff.

(3.) Here is a question as to which of two innocent parties should suffer. But in all these cases where an active representation is made by one of the parties to the other, the party who makes the representation is the party that should suffer, and not the party to whom the representation is made.