9911796707
TMI Blog1927 (7) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiff mainly upon this ground: The Negotiable Instruments Act nowhere lays down that the real owner of the money lent to a per on on a promissory note cannot sue its maker and get any money from him if his name be disclosed to the maker; it simply lays down that the holder of the document is entitled to get the money and give a. discharge to the maker: even a benamidar or trustee, if he be the holder, can sue and get a decree. The right of the real owner is not affected by this Act, if his name be disclosed to. the maker of the instrument and if the maker does not make any payment to the holder and get a discharge from him. 2. The learned advocate for the appellant raises two points in his appeal : the first is that the plaintiff' firm was incompetent to maintain the suit, having regard to the provisions of Section 78, Negotiable Instruments Act, 1881, read with Section 8 of Act. Secondly, if the suit is considered to be base upon the consideration paid to the defendant, the suit is barred, having been brought more than three years after the time when the loan was advanced. Under the promissory note the loan was payable to Pyari Lal Das or to his order after thir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o verified the plaint himself. The question, therefore, resolves itself into this : Whether the plaintiff firm Budh Nath Pyari Lal Das is a separate entity or a legal person different from Pyari Lal, or is it a comprehensive name for a number of persons, including Pyari Lal as a plaintiff. If the name of the firm is really the name of Pyari Lal with the addition of the names of certain other persons who are partners of the firm, then it is contended by, the learned advocate that the holder of the promissory note is the plaintiff in the cause, and the fact that he has joined other persons with him in bringing the suit cannot defeat the suit. The only question would be, if we do not accept the second branch of his argument in support of the finding of the Subordinate Judge, that the decree requires to be slightly amended by making it only in favour of Pyari Lal Das. This argument requires to be properly examined. Order 30, Rule 1, Sub-rule (1), Civil P.C., which is a new addition to the Code of 1908, runs thus: Any two or more persons claiming or being liable as partners and carrying on business in British India may sue or, be sued in the name on the firm... 6. It is unnecessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of this observation have been referred to J by me already. That being so, assuming that the first contention raised on behalf of the appellant, that no suit is maintainable by any person other than the holder is sound, in my judgment the suit cannot be thrown out on the ground that the holder of the promissory note is not a plaintiff. As I have already stated, Pyari Lal Das is a partner, and along with him there are several other persons who are partners of the firm, and we may take this to be the fact that these persons were joined in their individual capacity in the suit along with Pyari Lal Das. Sir Provash, on behalf of the appellant, Contends, that the firm is a separate entity in this particular case is a question of fact, because Pyari Lal Das in his evidence stated that he had got separate funds from his other partners. But this is not a question of fact. The names of the four persons who are partners of the firm may be taken to have been specifically stated in the plaint and all of them may be considered to have joined as plaintiffs. 9. This is sufficient for the purpose of deciding the case. But I think it is right that I should express my opinion with regard to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dges made some observations with regard to the right of a person to bring a suit, who is not named therein as the holder. These observations appear at p. [91 of 30 M.] of the report. The obiter dicta are entitled to the greatest respect as the learned Judges who compose 1 the Bench were English lawyers dealing principally with what is taken to be English law. But the difficulty arises when the learned Judges give their reasons for their dicta that negotiable instruments were governed in this country as in England by the Law Merchant. I should have been very glad to follow the dictum in that case although it was obiter, if I were not of the opinion that, where I am not bound by authority, I must decide a point according to my own judgment, and with very great respect, I feel that the dicta do not commend themselves to me. The first thing that I have to observe is that the Law Merchant of England was never applied in the mofussil, while the Negotiable Instruments Act is SJ applicable; and in order to construe the Negotiable Instruments Act it would be travelling too far if we go to see what the Law Merchant was. The preamble to the Negotiable Instruments Act states distinctly that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9; in the way proposed by the learned advocate and, as I have already stated, it will do no harm to any body, if the real owner is held to be entitled to sue if he is capable of giving a good discharge to the debtor from the holder of the instrument. In the present case, the holder of the instrument, Pyari Lal Das, has given evidence that the money belongs to all the members of the firm, and it has been found that the defendant was aware of it. He was willing to give a discharge to the defendant. It may be observed in this case that if Pyari Lal Das had taken the precaution of endorsing the instrument to the firm, there would have been no trouble. There is another case which I ought to refer to and which was cited on behalf of the appellant. It is the case of Beoti Lal v. Manna Kunivar MANU/UP/0231/1922. That case is directly in favour of the appellant's contention. In that case the real owner brought the suit on the allegation that the holder of the instrument was her benamidar who was dead at the time without leaving any heir. It was not possible for her to get any transfer from the holder. She brought the suit in her own name. The learned Judges held, reversing the decree of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
