VISHNU Vs. ACHUT

JUDGEMENT

(1.) THE defendant executed a promissory note in favour of Pralhad Ganesh, the brother of the plaintiff. The plaintiff claimed payment of the amount due on the promissory note which was not indorsed to him, alleging that the money advanced thereon was his and was advanced on his behalf by Pralhad. The defence was that the plaintiff not being the payee had no right to claim payment and was not entitled to maintain the suit. The defence having succeeded the plaintiff seeks revision of the decree of the lower Court.

(2.) SECTION 78, Negotiable Instruments Act 26, 1881, provides that, subject to the provisions of Section 82, Clause (c), payment of the amount due on a promissory note, bill of exchange or cheque must, in order to discharge the maker or acceptor, be made to the holder of the instrument. The provisions of Section 82(c) have no application in this case. Applying Section 78 to the present case the defendant will not be discharged from liability on the note unless he has paid the sum due on it to the holder. The question, therefore, remains whether the plaintiff is the holder for he has no right to claim the sum if by payment to him the liability cannot be discharged.

(3.) THE doctrine of benami cannot be applied in a case like this where the law by clear implication excludes its application. The application of the doctrine to negotiable instruments would, by introducing an element of uncertainty into them, hamper commerce, for facility of which they are largely used. On the other hand, the property in the instruments being transferable by mere indorsement the benamiship may easily be eliminated.