ALAPATI VENKATA KRISHNIAH Vs. VEMURI MANIKYARAU

JUDGEMENT

(1.) The petitioner instituted a suit in the Court of the Subordinate Judge of Tenali to recover the principal and interest due on a promissory note, dated 7 January, 1944, executed by the first defendant in favour of the second defendant and transferred to him for consideration on 27 March, 1944. The third defendant is the son of the first defendant and the fourth defendant is the son of the second defendant. The lower Court granted a decree to the plaintiff against his transferor, the second defendant, and his son, the fourth defendant, but dismissed the suit against the first defendant, the third defendant having died before the suit. The petitioner seeks to revise the decree of the lower Court in so far as it dismissed his suit against the first defendant, the maker of the promissory note.

(2.) The defence of the first defendant was that he had made payment of the entire amount of principal and interest due under the promissory note to the second defendant and obtained a receipt, Ex. D-1 dated 19 May, 1944. Aware of the infirmity of his case that the alleged payment could not have been endorsed on the promissory note and the promissory note itself was not returned to him, the first defendant alleged that the promissory note was not available at the time to be delivered to him.

(3.) The learned Subordinate Judge held that the first defendant made the payment to the second defendant in accordance with Ex. D-1. The first ground on which he held against the plaintiff so far as the first defendant was concerned, was that the plaintiff had not made a presentment of the promissory note within a reasonable time. He referred to Secs.10, 74, 78, 82, 105 and 118 of the Negotiable Instruments Act. It is regrettable that he failed, however, to refer to the only relevant section, namely, Section 64 of the Act, in which it is provided by the exception that: Where a promissory note is payable on demand and is not payable at a specified place, no presentment is necessary in order to charge the maker thereof. Mr. K. Kotayya, the learned advocate for the first defendant-respondent, quite properly did not support the learned Subordinate Judge on this point.