V.P.R.M.V. Muthaya Chettiar vs S.S. Rm. S. Firm

Pandrang Row, J.—This is an appeal from the decree of the District Judge of Madura dated 19th February 1931 dismissing an appeal from

the decree of the District Munsif, Madura Town, dated 20th December 1929, in O.S. No. 4 of 1927, a suit to recover the amount due under a

hundi executed by defendant 1 in favour of defendant 2 and payable at Madras by the firm of Al. Vr. Ct. Ratnam Chettiar. Defendant 2 endorsed

the hundi in favour of the plaintiff and it is not disputed that the endorsement was for valuable consideration. The plaintiff attempted to get payment

from the Madras firm but payment was refused and the hundi was sent back to him. The plaintiff alleged that he sent notice of the dishonour to

defendant 1 and that in reply defendant 1 sent a notice containing false and unfounded allegations and in particular setting up an agreement to the

effect that there was to be no liability incurred by defendant 1 under the hundi and that the plaintiff was aware of this agreement when he took the

endorsement. The suit was resisted by defendant 1 alone on several grounds and no less than ten issues were ""framed in the lower Court. The

plaintiff''s suit was decreed in his favour and on appeal that decree was confirmed by the lower appellate Court. Defendant 1 is the appellant in this

Second Appeal. It may be mentioned in this connexion that the only point argued in the lower appellate Court was that there was no due notice of

dishonour given to defendant 1 by the plaintiff and that the other contentions raised in the lower Court were not repeated in the lower appellate

Court.

It was found by both the Courts below that though notice of dishonour was sent, it was sent long after the dishonour, but that the plaintiff was

entitled to dispense with notice of dishonour under the provisions of Section 98(b), Negotiable Instruments Act, that is to say, on the ground that

the drawer himself had countermanded payment. There was no averment to this effect, namely, that there was a countermanding of payment by the

drawer, in the plaint, though the plaint referred to the reply notice Ex. 2 sent by defendant 1, and Ex. 2 itself was filed along with the plaint, and in

Ex. 2, it is contended, there is a clear admission that defendant 1 countermanded payment. In this Second Appeal it has been contended that in the

absence of an averment in the plaint claiming the benefit of the exception contained in Section 98(b) of the Act, or alleging that payment had been

countermanded by the drawer, the Courts below ought not to have considered the question at all and decided this point in favour of the plaintiff.

Secondly, it is contended that as a matter of fact there is no clear proof that there was a countermanding of payment by the drawer. As regards the

first contention reliance has been placed in support of it on Jambu Ramaswamy Bhagawathai v. Sundaraja Chetti (1903) 26 Mad 239 and Jambu

Chetti v. Palaniappa Chettiar 1903 26 Mad 526. The absence of an averment in the plaint has been considered by the lower appellate Court

which was of opinion that though it would have been safer and more desirable if the plaint had contained a definite averment, nevertheless in the

present case, defendant 1 had not been prejudiced or taken by surprise by reason of this question being decided without an averment in the plaint,

because the question had been raised in the trial Court itself and decided, and the evidence on the point was only what is contained in defendant

1''s own admissions. I am of opinion that in these circumstances it was not necessary to compel the plaintiff to amend his plaint for the purpose of

introducing an averment regarding the countermanding of payment. The parties concerned were aware of this contention or allegation before the

trial Court and during the trial, and it is not pretended that defendant 1 had no opportunity to meet the allegation or that he wanted an adjournment

and was refused an adjournment for the purpose of adducing evidence on this point. To compel the plaintiff to amend his plaint for this purpose

would only add to the costs of the litigation and prolong it, and I am of opinion, that defendant 1 (appellant) is not likely to be really benefited by a

fresh trial of this question.

The decisions relied upon by the appellant do not go to the length of saying that in every case the absence of a specific averment in the plaint is

fatal to the suit and that the only alternative open in the absence of such averment is to dismiss the suit or to have the plaint amended. What was

decided in Jambu Chetti v. Palaniappa Chettiar (1903) 26 Mad 526 was that none of the exceptions in Section 98 can be pleaded for the first time

in appeal. That is not the case here. The contention about the countermanding of payment was raised during the trial itself in the trial Court. I am

therefore of opinion that in the present case it is not necessary in the interests of justice that there should be an amendment of the plaint for the

purpose of introducing therein an averment about the countermanding of payment. It would only be purely formal and would not really affect the

decisions in the suit.

I now proceed to the second contention which is the more substantial one in this appeal. Both the Courts below have relied on defendant 1''s

own letter Ex. 2. Even according to defendant l''s own version in his evidence, he has mentioned in Ex. 2 that the hundi was not honoured in

consequence of his letter to the Madras firm. In Ex. 2 itself he recites the agreement whereby it was agreed that the hundi was to be only an

accommodation hundi and that the person in whose favour it was drawn, i.e., the payee (defendant 2) was himself to pay the amount due under the

hundi and return the hundi using it only for the short space of three days for accommodation purposes, and that the plaintiff, when he took the

endorsement of the hundi, was made aware of this agreement by defendant 2. It may be mentioned in this connexion that this agreement has been

found to be not true. Defendant 1 then goes on to say in Ex. 2 that a letter was written by him to the Madras firm about this agreement and that

money was not paid by that firm in consequence of that letter. The Courts below have held that this really means that payment was countermanded

by defendant 1 and I am of opinion that their view is right. It is not necessary that the actual words ""countermanded payment"" should be used; it is

sufficient if the words used clearly show that the drawer does not want payment to be made in accordance with the tenor of the hundi. The mention

of the agreement referred to above in the letter to the drawee, and the admission that the nonpayment was due to the letter, are enough in my

opinion, to show that defendant 1 did really countermand payment and that the Madras firm refused payment on account of the letter sent by

defendant 1 reciting the agreement. It may also be mentioned in this connexion that the question whether there was a countermanding of payment

or not is really a question of fact, and the findings thereon by the Courts below are concurrent; and unless it is shown that these concurrent findings

are contrary to law, they cannot be upset in second appeal. It follows from what I have said above that the appeal must fail. It is accordingly

dismissed with costs. Leave to appeal is asked for but is refused.