9911796707
TMI Blog1976 (3) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... secutive in the sense that the borrowings were on the 12th, 13th, 16th and 27th of August 1966. Exhibits A-1 and A-2 are the promissory notes admittedly signed by the first appellant on the 12th and the 27th of August 1966. The consideration paid thereunder is also admitted. Exhibits A-3 and A-4 are two other promissory notes in which the signature of the first defendant is admitted but the consideration said to have been paid thereunder is denied. The plaintiff, however, on the basis of the above four promissory notes filled the present action seeking to recover a sum of ₹ 46,898-24. In the plaint itself he concedes that a sum of ₹ 5,000/- was paid towards Exhibit A-1 debt on 30-3-1967 and no further amounts were paid under the other three promissory notes. The plaintiff also would rely upon Exhibit A-5, the letter of guarantee executed by the second defendant and seeks for a decree against both the first defendant as the principal debtor and against the second defendant as surety. 3. The first defendant's case is that he had dealings with the plaintiff for a considerable length of time and he would admit liability only as under Exhibits A-1 and A-2 but would de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there was no material alteration in respect of the promissory notes and the second defendant was liable as a surely under Exhibit A-5. It is as against this, the present appeal (A. S. No. 520 of 1972) has been filed. 6. Mr. Sivamani, learned counsel for the appellants repeated the various contentions raised before the trial Court. However, he does not keenly press the contention that the promissory notes, Exhibits A-1 and A-2 have been discharged. His main contentions, however, are threefold. Firstly he would say that Exhibit A-5 ceased to be operative after there was a disruption in the family of the defendants in the year 1964 and if at all it was effective it could have been so effective only for all such debts and transactions entered into between the first defendant and the plaintiff between 31-1-1949 which is the date of Exhibit A-5 and 1954 which is the year when there was partition in the family. In this context, he would say that Exhibit A-5 has become a stale guarantee. Secondly he would say that no written notice has to be given, though contemplated in Exhibit A-5, by the second defendant to the creditor in order to avoid his contractual obligation thereunder as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed setting up this plea. Even before the plaintiff came to Court, there were notices which were exchanged between the parties. Even in the said notices the plea of material alteration is not, either expressly or by necessary implication, set out. There the defendants case was that the plaintiff might have utilised certain discharged blank promissory notes which were kept with him without being taken a return thereof, and it was in this light, he challenged the implement ability of Exhibits A-3 and A-4. 9. In the witness box he trotted out the story that the contents of Exhibits A-3 and A-4 have been materially altered. 10. We shall now take up the last contention whether in the instant case it could be said that the plea of material alteration could be sustained. We have already traced the inconsistent stand of the defendants at various stages. Primarily the first defendant's evidence was that he executed Exhibits A-3 and A-4 in blank forms and that the instruments were filled up later by the plaintiff to his advantage. The first defendant admits that he has long-standing dealings with the plaintiff. In such circumstances it would be difficult to believe that the plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writing is found in Exhibits A-1 and A-2 also. In so far as the name of the payee is concerned, it is not the first defendant's case that the payee should not be a person other than the plaintiff. Even here, the first defendant cannot further his self-serving assertion regarding the material alteration. The plaintiff, in the witness box, was asked about it and he denied it and when the first defendant was in the box he was questioned whether he would execute a promissory note without date, he could say that he was not in the habit of signing such promissory notes. All these factors taken together belie the defence of the first defendant that the instruments Exhibits A-3 and A-4 suffer from material alteration. 11. Then the next question is whether the plaintiff on whom the burden shifted after the defendants went into the box has proved that he paid the consideration under the promissory notes. In the case of proof of such passing of considerations under negotiable instruments, the burden of proof being ambulatory, shifts from one side to the other. The plaintiff in this case who examined himself as P.W. 1 produced his accounts. Though they are in Sindhi language he caused a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same together with the agreed rate of interest. 12. The next contention of Mr. Sivamani is that the second defendant should be exonerated as his obligation as a surety was dissolved as soon as there was a partition in the family in 1964. For this purpose it is necessary to examine the security bond itself. Exhibit A-5 is a letter couched in general terms, and is executed by both the defendants. The second defendant along with the first defendant has agreed to stand surety for the first defendant's transactions, whatever may be the nature of the transactions. By way of illustration, however, ordinary instruments under which transactions are effected and borrowings made, such as promissory notes, hundies, letters of credit, overdrafts etc. do find a place in Exhibit A-5. But the principal bargain between the parties appears to be that the second defendant would be a surety for all the transactions of whatever nature which the first defendant would do with the plaintiff. Again it was made clear that the liability so undertaken by the second defendant along with the first defendant should hold good till both of them jointly cancel the obligation as above by sending register ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the occasion, S. 130 in terms refers to a notice to the creditor. It says that a continuing guarantee may at any time be revoked as the surety as to future transactions by notice to the creditor. The act having left the position at that it is open to the parties to provide as to the manner in which notice to the creditor under S. 130 could be given. If therefore the parties think of laying down particular method by which such a notice for revocation of the guarantee under S. 130 has to be given, then such a contract is a binding contract and it cannot be easily brushed aside on a priori consideration. The lower Court in this case found that the story of the first defendant that the creditor was informed of the partition in the family in 1964 and thereby was put on notice of the fact that the contract of guarantee under Exhibit A-5 would be no longer in force, remained only as a bare contention without being substantiated. No letter has been produced expecting the reply notice given by the second defendant under Exhibit B-2 in 1967, when for the first time the theory that the creditor was put on notice of the partition of the joint family was set up. The Court below therefore rig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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