TMI Blog1978 (6) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 6000 had been paid back and that only the balance of Rs. 1000 was due on the promissory notes. The rate of interest viz. 24 per cent per annum shown in the promissory notes was said to be usurious and illegal. 3. Defendants 2 to 4 filed a common written statement for themselves. They did not admit the signature to be that of Moshin Bhai. He was said to have been ill and for about 2 or 3 years prior to his death, his memory was alleged to have failed. According to them, there was no need for any borrowal and no amount had been brought into the firm's account on the relevant dates. They, therefore, contended that the promissory notes were not supported by consideration. The following issues were framed:-- 1. Whether the pronotes are not fully supported by consideration? 2. What are the amounts actually advanced? 3. Did the second defendant execute the pronote along with the 1st defendant? 4. Are not the defendants liable to pay the suit claim? 5. To what relief? The additional issue which was numbered as issue No. 6 ran as follows- 6. Are the suit promissory notes validly executed by the first defendant? 4. The learned trial Judge held on Issues ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... They have not done so. Thus, there was no scope for the trial court to compare the admitted signature with the signatures in Exs. A. 1 to 3, for the purpose of accepting the theory put forward by the defendants. 6. In the absence of the production of the admitted signatures of Moshin Bhai, the court below was compelled to infer that the material piece of evidence which should be available with defendants 2 to 4 had not been placed before the court and that if it were favourable it would have been so produced before court. Moshin Bhai is unfortunately no more, he having died on 5-2-1971, about two years after the execution of the promissory notes. Therefore, the question as to whether Moshin Bhai signed or not has to be considered only in the light of the other evidence on record. The credibility of D.W. 2 has to be considered in the light of his own contradictory evidence in the chief and cross-examinations. While in the chief examination he stated that the notice Ex. A. 4 was received after his father's death on 5-2-1971, and that he did not reply because he was not concerned with it, in cross examination he stated that Mallik was contacted and that Mallik said that he woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion being taken at this stage. For the appellants the submission was this contentions a purely legal one, which could, under the law, be taken at any stage of the proceedings. Reference in the context was made to the decision of the Supreme Court in C. Subbanna v. K. Subbanna [1965]2SCR661 and particularly the passage in para 4 at p. 1328 and also to a decision in Kesava Gounder v. Rajan (1976)1MLJ56 . 10. The point to be examined is whether the contention described above is one of pure law requiring no fresh investigation of facts so as to be liable to be urged at any stage of the proceedings. According to the learned counsel for the respondents, the plea that is now sought to taken is also an inconsistent plea, which cannot be allowed to be urged without amendment of the written statement. 11. There were two main pleas set out in the written statement. One was that no consideration passed and the other was that the second defendant firm was not liable. It is on the latter aspect that evidence was let in to show that the second defendant firm has no need to borrow fund. The point now raised does not appear to be so inconsistent a plea as to merit rejection in limine at this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dur. ILR (1919) Cal 663: (1919) 36 MLJ 429,Lord Buckmaster in delivering the judgment of the Privy Council observed as follows:-- It is of the almost importance that the name of a person or firm to be charged upon a negotiable document should be clearly stated on the face or on the back of the document so that the responsibility is made plain and can be instantly recognised as the document passes from hand to hand..........It is not sufficient that the principal's name should be in some way' disclosed, it must be disclosed in such a way that on any fair interpretation of the instrument his name is the real name of the person liable upon the bill . 13. the appeal in that case was dismissed thereby confirming the exoneration of the liability of the Maharaja. In K. V. Srinivasayya v. K. M. Nagappa AIR1936Mad984 , the body of the promissory note stated that it was a pronote executed by Pedda Mallappa, partner of the firm Kamayappa (the firm's name) and Chinna Mallappa. It was signed by Pedda Mallappa and Chinna Mallappa without any further designation. It was held that the description of Pedda Mallappa as a partner of the firm was inadequate to disclose that it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
