KUNDAN LAL Vs. SAHU BHIKHARI DAS-ISHWAR DAS

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for recovery of Rs. 9,000 and odd on the bas is of two hundis for Rs. 5,000 and 4,500 respectively, executed by the defendants Kundan Lal and Suraj Bhan in favour of the plaintiffs. The case as put forward in the plaint was that the defendants were partners of a firm styled Kundan Lal and Suraj Bhan carrying on business at Hapur, and they executed these hundis on 15 December 1922 on receipt of consideration and made them over to the plaintiffs; that these hundis were accepted by Kundan Lal, defendant 1 who was a proprietor of a firm styled Banwari Lal Kundan Lal on which these hundis were drawn; that the hundis were presented for payment and they were dishonoured. The defendants pleaded that the hundis were not properly cancelled and that the interest of 15 annas per cent. per mensem claimed in the plaint was excessive. They also denied the receipt of consideration, and pleaded that these hundis were executed merely as security for loss that might be incurred in certain gambling transactions. Suraj Bhan, defendant 2, further pleaded that no notice of dishonour had been given to him and he was not liable under the hundis. The Court below has held that the hundis were not properly cancelled and are not admissible in evidence. But it has allowed the plaintiffs to fall back on the original consideration and has decreed the claim against both the defendants, holding that there was no defect of want of notice of dishonour so far as Suraj Bhan was concerned.

(2.) These hundis were not on single stamp papers. Three stamps were used for one hundi and two for the other. There was no actual deficiency in the value of the stamps employed but these impressed stamps were pasted one upon the other leaving writing space only on the last stamp on which alone the hundis were written. The other stamps were merely pasted on to them and they were not in any way cancelled, nothing having been actually written on them. The Court below has held that, in view of the provisions of Section 13, Stamp Act, which requires that every instrument written upon paper stamped with an impressed stamp shall be Written in such "manner that the stamp may appear on the face of the instrument and cannot be used or applied to any other instrument, the stamps were not properly cancelled. The finding of the Court below on this point has not been challenged before us. It must therefore be taken that the stamps used for the hundis were not properly cancelled and that these hundis therefore are not admissible in evidence.

(3.) It would be convenient to dispose of the plea of want of a notice of dishonour to Suraj Bhan at the outset. In the first place, as the hundis are not admissible in evidence, the claim on the basis of these hundis cannot be decreed, and, therefore, no plea as to want of a notice of dishonour really arises in the case. Furthermore Section 98, Sub-clause (e), Negotiable Instruments Act, makes it quite clear that no notice of dishonour is necessary to charge the drawers when the acceptor is also a drawer. The use of the singular drawer followed by the plural drawers in the section shows that if the accept or is one of the drawers both the drawers would be liable even though no notice of dishonour has been given. Kundan Lal who was one of the drawers was the acceptor, and therefore a notice of dishonour was not necessary even as regards Suraj Bhan.