P. Seshagiri Rao vs T.V. Seshagiri Rao

Walsh, J.—The suit was brought on a promissory note executed by defendant 2 signing his own name and also signing as guardian of the

minor defendant 1. In the prayer column the only relief asked for was against the assets of the minor in the hands of defendant 2. The plaintiff

afterwards asked leave to amend the plaint by asking for relief against defendant 2 personally. The amendment was allowed and defendant 2 then

alleged that the personal claim against him was barred on the date the amendment was allowed. To save limitation the plaintiff relied on a M.O for

Rs. 2 received by him on 19th August 1929 from defendant 2. The Court did not find it proved that it was towards payment of the promissory

note debt, and consequently the personal relief against defendant 2 was refused to plaintiff. This revision petition is filed against that order. It is

argued for the plaintiff on the authority of Saminatha v. Muthayya (1892) 15 Mad 417, a very similar case, that as defendant 2 was a party to the

suit from the beginning, the effect of the amendment was not to add a new person as defendant but to alter the ground on which a person already a

defendant was to be held liable. Consequently once the amendment was allowed, Section 22, Lim. Act, did not apply. Mr. Jayarama Ayyar for the

respondent did not dispute the legal correctness of petitioner''s contention, but he sought to uphold the order of the lower Court on the ground that

the promissory-note was not executed by defendant 2 in his personal capacity but only as guardian not the minor. For this he relies on the form of

the plaint as showing the interpretation which plaintiff put on the promissory-note, and also on the wording of the note itself. I have no hesitation in

agreeing with the view of the lower Court that on the promissory-note defendant 2 is personally liable, and I should in any case be reluctant to

interfere in revision with such a finding on the interpretation of a document unless the lower Court were very clearly wrong. The material part of the

promissory-note runs:

The balance is Bs. 400. This sum of rupees four hundred we have agreed to pay you and so we owe you. On demand we promise to pay you or

your order this sum with interest thereon at one anna per cent per mensem and get tins returned. To this effect is the promissory-note executed

with our consent and in the handwriting of T.V. Seshagiri Rao, the guardian.

Then defendant 2 (T.V. Seshagiri Rao) signs his name alone across the stamp and again below the stamp as ""guardian for minor Sanjevi

Ammal."" The personal ''liability undertaken by defendants is clear and I agree with the learned advocate for the petitioner that his description of

himself in the last sentence of the promissory-note is only to identify himself as the writer of the document. It is no doubt pointed out in. Subbanna

v. Subbarayudu 1926 Mad 390 that Section 28, Indian Negotiable Instruments Act is in one respect strikingly different from Section 16, Bills of

Exchange Act, 1882. The English Act required that the words indicating that the personal liability is excluded must be added to the signature itself.

The Indian Act is less rigorous and from the whole of the document the intention may be inferred. The case however does not help the respondent

at all. In the promissory-note there, the statement was said to be ambiguous. In the operative part the executants said ""We shall pay either of us on

demand."" In spite of the fact that in the document it was mentioned that the debt was that of the minor''s father and that the executants were his

guardians it was held that, these words did not unequivocally exclude, the guardians from personal liability in view of the plain words by which they

undertook personal liability. The personal liability of defendant 2 under the promissory-note is, I consider, as found by the lower Court, perfectly

clear; and as the lower Court is wrong in thinking that, though the suit was instituted in time the claim against defendant 2 must be taken to date

only from the date of the amendment and is so time barred, Section 22, Lim. Act, cannot be invoked to save limitation. This petition must therefore

be allowed with, costs and the petitioner given a personal decree against defendant 2 as prayed for.