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TMI Blog1927 (1) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... and the defendant Dhirendra Nath. Noren died in June 1923, and the second and third defendants are his heirs. Upon the evidence I am of opinion that the members of this joint family were not a trading firm, and mat the promissory notes in suit were not drawn by Noren as the manager of, or in the course of carrying on a family business : but I find as a fact that Noren signed the promissory notes in suit as the karta of the family in order to obtain funds to be expended for legitimate family purposes, and I also find that the proceeds of the loans were so applied. 4. Noren having signed the promissory notes and having undertaken the obligations thereby created for purposes that were not immoral, the Defendants Nos. 2 and 3, as his heirs, have no defence to the plaintiff's claim under the promissory notes; and a decree will pass against them to the extent to which they are, or have been, in possession of property as the heirs of Noren. 5. The controversy in this suit is with respect to the liability of the defendant Dhiren, and learned Counsel for Dhiren has raised several defences on his behalf. In the first place it is contended that inasmuch as the plaint was not duly ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inion when a pleading does not conform with the provisions of Order 6, Rule 15, the defect therein is a mere irregularity that can be cured by amendment and, the plaint in this case must be taken to have been presented on the 25th August 1925, and I not on the 8th December 1926, when the verification was amended : Rajit Ram v. Kateshar Nath [1896] 18 All. 396, Fateh Chand v. Mansab Rai [1893] 20 All. 442, Basdeo v. John Smidt [1899] 22 All. 55, Shibdeo Misra v. Ram Prasad AIR1925All79 , Mohini Mohun Das v. Bungsi Buddan Sahu Das [1889] 17 Cal. 580 (P.C.), Port Canning and Land Improvement Co. v. Dharnidhar Sardar 9 C.W.N. 608 and Charan Das v. Amir Khan. A.I.R. 1921 P.C. 50. 8. The defendant Dhiren further contended that he did not sign either of the two notes, and that his name had been placed thereon without his authority or consent. (The judgment then discussed. the evidence and continued.) For these reasons I am clearly of opinion that the defendant Dhiren neither signed the promissory notes himself, nor authorized anyone else to sign them on his behalf. Learned Counsel for the defendant Dhiren further contended that the plaintiff's cause of action in this suit, as set o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... moneys lent by an agreement that was independent of the obligations which he undertook by signing the promissory notes? If he did, it was open to the plaintiff in proceedings aptly framed to sue him either upon the promissory notes or in the alternative upon the independent agreement into which he had entered. On the other hand, if Noren's obligations-under any pre-existing independent agreement to re-pay the moneys lent had become merged in the contract created under the promissory notes, or the receipt of the promissory notes was the, consideration for the loans, the plaintiff has no cause of action for money lent, and he cannot recover otherwise than upon the terms of the contract contained in the promissory notes, his sole cause of action being based upon the notes : Sheik Akbar v. Sheik Khan [1881] 7 Cal. 256, Saminathan v. Palamappa Chetty [1913] 41 I.A. 142, Sadusuk Janaki Das v. Kishan Pershad [1919] 46 Cal. 663, Hari v. Sourendra AIR1925Cal1153 and Parbati Charan Mukerjee v. Amarendra Nath Bhattacharjee. 11. Further, if the plaintiff in this suit is entitled to recover the moneys lent as. a debt contracted by Noren as karta otherwise than under the promissory notes, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed principal Sadusuk Janki Das v, Maharaja Sir Kishan Pershad [1919] 46 Cal. 663. 13. The decisions of the Courts in India prior to this case must now be read in the light of the above observations, further, if it is proved that legal consideration was given for a bill of exchange or promissory note, the Court will not further enquire into the nature or the adequacy of such consideration nor in a suit upon a bill of exchange or promissory note is the Court concerned with the purpose for which the defendant contracted liability under the instrument, or the use to which the consideration for executing the instrument was put : vide, e.g., Sections 8, 32, 36, 38, 43, 44, 78 and 118 of the Negotiable Instruments Act (26 of 1881). If the holder of a bill of exchange or promissory note was not able to ascertain upon a perusal of the document and without further investigation the persons who were the parties to it, and the extent of their liability, the purpose for which negotiable instruments were brought into being would be frustrated, and their usefulness seriously impaired. It follows, therefore, that the karta of a joint Hindu family, by executing a promissory note unconditionall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contracted by the karta. After holding that the members of the family who were not parties to the promissory note were not liable upon the note, his Lordship observed that the liability of persons in the position of the appellants which arises on its being shown that a debt has been property incurred in the management of the family affairs is founded on Hindu Law, and not on the law of agency, 17. and that it is a liability which is, so to speak, ex-ternal to the obligation arising on the making of the promissory note. 18. The learned Judge then added that: It is argued that the present suit was strictly confined to a demand for payment of the note and that the plaint did not include a demand in respect of original debt. It appears to me on reading the plaint that it contains all the allegations that are needed in order to charge the appellants with liability. The charge is that the debt was incurred for the expenses of the family and that they are bound to discharge it. There can be no doubt that the Courts below as well as the appellants understood fully the case which the plaintiff was seeking to establish. 19. On the other hand, Davies, J., in a dissenting judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge unless his name or the name of some partnership or body of persons of which he is one, appears either on the face, or on the back of the bill. That is the clear law of this country. It was decided in Nicholson v. Ricketts 2 El. El. 497 if authority be required for such a proposition, that an association which is absolutely without a name, has no name by which it can draw, accept or endorse bills of exchange. It was suggested, and the arguments appear to have prevailed with the Vfce-Chancellor, that where the members of such an association for the firm constituting such an association, for the purposes of that association, draw or accept bills in their individual names or in the names of their partnerships, that for that purpose and for the purpose of doing equity, or of reaching the real principal, it might be assumed that the name of the partner upon the bill, or the name of the partnership upon the bill might be considered, as being pro hac vice the name of the association. That, in my opinion, is a mere flatio jttris, and although it used to be said in fictione juris consist it acquitas. I think that in these prosaic days and in the old days of the Court, we do not indulge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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