Shunmuga Chettiar vs Siva Chinnasami Naidu 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 1839, 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 plaintiff''s case was that the hundis were presented for payment but not paid and that therefore the

amount of the bond became due by the defendant. The defendent contended that the hundis were not: presented for payment, that he had no

notice of their dishonor and that he was not liable under the bond. As regards the presentation of the hundis the Subordinate Judge found that

though there was no direct evidence, it was presumable from the plaintiffs'' conduct, and the evidence of their witnesses that the hundis were

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

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 hundis 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 hundis were presented for payment is a mere surmise. But it is in [676] evidence that six

hundis were given, that three were paid and that the others were not paid. Both the witnesses for the plaintiffs disposed 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 2nd

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

of six hundis 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 shew that want of notice of dishonor 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 hundis or any of them were returned 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, 292, 14tn Edition). It is also found by the Subordinate Judge that the defendant has no evidence to shew that he has been damnified in any

way by Want of notice of dishonor! 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 hundis 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.

Note-Judgment in C.R.P. Nos. 174 to 176 of 1890--These oases follow 0. ft. P. No. 173 of 1890 and for the like reasons as are recorded in our

Judgment there in we dismiss these petitions also with costs.