1949 (3) TMI 23 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the plaintiff is a holder in due course.
2. Whether the notice of dishonor was given within a reasonable time.
3. Whether the defendant is entitled to unconditional leave to defend the suit.

Detailed Analysis:

1. Whether the plaintiff is a holder in due course:
The plaintiff, South Indian Bank, Ltd., instituted a suit for recovery of a sum based on a cheque drawn by the defendant. The cheque was endorsed to the plaintiff for valuable consideration, making the plaintiff a holder in due course. The defendant contended that the plaintiff was not a holder in due course as there was no consideration for the endorsement. However, the Master found that the endorsement was supported by consideration because the payee endorsed the cheque in reduction of his previous liability and to provide a margin for future advances. This finding was upheld by Yahya Ali, J., and the appellate court, which concluded that the plaintiff was indeed a holder in due course.

2. Whether the notice of dishonor was given within a reasonable time:
The defendant argued that the plaintiff had no cause of action as no notice of dishonor was given until 26th May, 1947, which was unreasonable given the cheque was dishonored on 16th April, 1947. The Master found that the defendant was informed orally of the dishonor immediately after it occurred and had requested the plaintiff to present the cheque again, which was dishonored twice more. Therefore, the delay in formal notice was justified, and the oral notice was deemed sufficient. This finding was also upheld by Yahya Ali, J., and the appellate court.

3. Whether the defendant is entitled to unconditional leave to defend the suit:
The defendant sought leave to defend the suit unconditionally, arguing that triable issues were raised. Under Order 7, Rule 6 of the Original Side Rules and Order 37, Rule 2 of the Civil Procedure Code, the court has discretion to grant leave to defend either unconditionally or subject to terms. The appellate court referred to the principles laid down in Jacobs v. Booth's Distillery Co. and other precedents, which state that leave to defend should be granted unconditionally if the defense raises a real and substantial issue. The court concluded that the defendant's defense was a sham and did not raise a real issue. The defendant admitted that the cheque was issued as an accommodation cheque, and therefore, he suffered no prejudice due to the lack of notice of dishonor. The defense of the plaintiff not being a holder in due course was also found to lack substance. Consequently, the court upheld the decision to grant conditional leave to defend, requiring the defendant to deposit a sum of Rs. 10,000 or furnish security within a specified period.

Conclusion:
The appeal was dismissed, and the court extended the time for the defendant to furnish security by one month. The defendant's undertaking not to alienate his immovable properties pending the appeal was to continue until the security was furnished. The judgment emphasized that the defense raised by the defendant did not warrant unconditional leave to defend as it did not raise a plausible issue for trial.