Shanmugam vs Chinnasami and Another

This is a revision petition filed u/s 25 of Act IX of 1887. The petitioner is defendant and the counter-petitioners are plaintiffs in Small Cause Suit

No. 811 of 1889 on the file of the Subordinate Judge of Kumbakonam. The suit was brought on a bond executed by defendant in plaintiffs'' favour

in August 1886 for passage money due by certain emigrants who then proceeded from Tranquebar to Mauritius by the plaintiffs'' steamer. The

bond was given as a collateral security for six hundies, payable on demand, which the defendant drew on certain persons living at Mauritius in

favour of the plaintiffs'' steamer agent. The plaintiffs'' case was that the hundies were presented for payment but not paid, and that, therefore the

amount of the bond became due by the defendant. The defendant contended that the hundies were not presented for payment; that he had no

notice of their dishonour, and that he was not liable under the bond. As regards the presentment of the hundies the Subordinate Judge found that

though there was no direct evidence, it was presumable from the plaintiff''s conduct, and the evidence of his witnesses that the hundies were

presented for payment but dishonoured. As regards notice of dishonour, he held that no notice was given within a reasonable time. The hundies

were drawn in August 1886 and returned to this country unpaid only in June 1889. Adverting to the delay the Subordinate Judge observed that

when payment was demanded, defendant did not complain, and that, moreover, he had no evidence to show that he drew the hundies upon his

debtors and that he sustained any damage by reason of the delay. In the result he decreed the plaintiffs'' claim.

It is urged for the petitioner that the finding that the hundies were presented for payment is a mere surmise. But it is in evidence that six hundies

were given, that three were paid, and that the others were not paid. Both the witnesses for plaintiffs deposed that when payment was demanded

the defendant did not at once repudiate his liability on the ground that he had had no notice of dishonour. The first witness stated that when he

demanded payment the defendant took him to one Sundaram Pillai who promised to pay as soon as he heard of the dishonour. The second

witness also deposed that payment was demanded on several occasions and that it was put off on some pretext or another. The fact that three out

of six hundies given for the passage money were paid at Mauritius suggests to some extent the inference that all the six were presented, and we

cannot say that there is no evidence at all as to presentment. Nor can we say that there is no evidence to show that want of notice of dishonour

was at once insisted on as a ground of discharge. We observe, further, that the suit is brought on a deed of indemnity whereby the defendant

undertook to pay in case the hundies, or any of them, were returned all unpaid to this country. It has been held that mere neglect to present for

payment does not discharge one who guarantees payment of a bill or note unless it is shown that if it had been presented it would have been duly

paid (see Byles on Bills, 14th edition, 292). It is also found by the Subordinate Judge that the defendant has no evidence to show that he has been

damnified in any way by want of notice of dishonour. The action being one based on an indemnity bond it is clearly for the defendant to prove that

he has sustained damage, especially as the fact whether the drawee has had any effects of the drawer in his hands, and whether the latter has not

been able to withdraw or otherwise utilize them by reason of plaintiffs'' neglect is one peculiarly within his knowledge.

As regards the objection that the claim is barred by limitation it is to be observed that under the terms of document A the debt became due only

when the hundies were returned unpaid. We are also unable to hold that interest was not chargeable under the bond in default of payment from

date of its execution.

We dismiss this petition with costs.