KOTTAN Vs. KVKANNAN

JUDGEMENT

(1.) The point for determination in this revision petition is whether an endorsee of a simple on demand promissory note will be entitled to a decree against an endorser without proof of presentment for payment to the maker and without notice of dishonour to the endorser.

(2.) The suit was on a promissory note for Rs. 240 executed on the 12 March, 1944, by the first defendant in favour of the second defendant. On the 14 April, 1944, the second defendant endorsed in favour of the plaintiff for consideration. The suit was filed on the 13th February, 1947. The allegation in the plaint is that the defendants failed to pay the amount on several oral demands and the registered notice sent to the defendants by the plaintiff on the 10 February, 1946, proved of no avail and hence the plaintiff was constrained to file this suit. The first defendant was ex parte. The second defendant pleaded that the moneys paid under the promissory note belonged to the plaintiff and that he was a name-lender to the promissory note and that at the request of the plaintiff it was endorsed over to him. A decree was passed against both defendants.

(3.) The counsel for the petitioner argues that there was no presentment of the pronote for payment and no notice of dishonour in order to make the endorser liable. This plea was not raised in the written statement, but however this appears to have been raised in arguments and the lower Court simply referred to Secs.35, 93 and 106 of the Negotiable Instruments Act and the decision in Jagannadha Reddiar V/s. Lakshmana Reddiar which held that the liability of the endorser of a promissory note was not governed by Section 35 of the Negotiable Instruments Act and that in order to make the endorser liable it must be presented for payment within a reasonable time after the endorsement; but however did not deal with the question whether notice of dishonour was necessary or was given in order to make the second defendant liable. The lower Court finds that there was a written, :demand made by the plaintiff to the endorser, the second; defendant and also found that there were several demands now and then to the defendants in respect of the promissory note. There is no evidence of any oral demand; but I am not prepared to go behind the finding of the lower Court that there were several demands in view of the failure of the second defendant to deny the allegations in the plaint where the plaintiff specifically stated that he made several demands on the defendants. It is however to be considered whether there was presentment for payment and notice of dishonour in order to make the endorser liable on the pronote.