The Judgment of the Court was as follows:—
Ghose, J.:— This is an appeal from an order made by my learned brother Mr. Justice Pearson on the 6th December 1926 on an application made by the Plaintiff Company under Chap. XIIIA of the Rules of this Court for summary judgment.
The facts shortly stated are as follows:— The Defendant Shyam Sundar Chakravarty who is the Appellant before us was on all material dates the Editor of the “Servant” newspaper and Managing Director of the Defendant Company, namely, the Servant Publishing Company, Limited. It appears that the Plaintiff Company supplied paper from time to time for the use of the Defendant Company and, when the goods were delivered, the Appellant Shyam Sundar Chakravarty executed certain promissory notes for the value thereof. The promissory notes were eight in number. The Plaintiff Company made attempts to realise the monies due but did not succeed. There was on the date of the application a sum of Rs. 8,910-2-6 pies due to the Plaintiff Company for principal and a sum of Rs. 463-4-4 pies on account of interest. The promissory notes were all alike and one of them which is printed at page 13 of the Paper-Book may be quoted herein as a sample:— “On demand I, Shyam Sundar Chakravarty, Esq., Editor and Managing Director” ‘The Servant’ promise to pay the ‘Titaghur Paper Mills Co., Ltd., or order, the sum of rupees nine hundred twenty-two and annas four only together with interest thereon at the rate of twelve per cent, per annum from the 10th February 1925, being the value of one hundred and thirty-six reams of paper sold and delivered to me from their godown as per their Delivery Order No. L/788.”
The Appellant filed an affidavit in answer to the application of the Plaintiff Company in which he contended that he did not sign the said promissory notes in his personal capacity in consideration of the paper being supplied to the Defendant Company and that, under the circumstances, the Servant Publishing Company, Limited, were alone liable for the price of the paper supplied and that there was no personal liability undertaken by the Appellant. The matter came on before my learned brother, Mr. Justice Pearson, on the 6th December 1926, when he made an order in terms of the Plaintiff Company's summons for summary judgment. He held that, having regard to the terms of the promissory notes, it could not be contended that the Appellant had not undertaken any personal liability in respect of the sums mentioned in the said promissory notes.
On appeal it is argued on behalf of the Appellant by Mr. S.C Roy, firstly, that there was a triable issue raised by the Appellant and that no summary judgment should have been passed, and, in the second place that on the construction of the promissory notes themselves there was no personal liability undertaken by the Appellant and that, therefore, no decree should have been made against him.
As regards the first point, it is sufficient to observe that, on the materials before us, it is clear that there was no triable issue dependent on facts which were to be investigated, but there was a question of law raised by the Appellant, namely, whether having regard to the terms of the promissory notes, any personal liability had been undertaken by the Appellant. That question did not in my opinion involve the taking of evidence. It was a pure question of law and had to be decided with reference to the terms of the promissory notes. On the decision of that question depended as to whether there should be a summary judgment in favour of the Plaintiff Company or whether leave to defend the suit should be given to the Appellant. Mr. Justice Pearson held on the construction of the promissory notes that the Appellant had undertaken a personal liability and passed summary judgment in favour of the Plaintiff Company. That amounted to saying that, in the circumstances disclosed, no leave should be given to the Defendant to put in a defence in the ordinary way. That disposes of the first point raised by Mr. Roy.
As regards the second point, it is sufficient to observe that having regard to the cases, some of which are referred to in my judgment— In the matter of Jajodia Cotton Mills, Ltd. , it cannot be contended on the documents in this case that the Appellant had not undertaken and did not undertake any personal liability. The Appellant's description as Managing Director in the body of the promissory notes had not the effect of excluding his personal liability. It is noteworthy that the Appellant when he put his signature on the promissory notes signed his name without any qualification whatsoever and did not take any steps whatsoever to indicate that he was signing the document not in his personal capacity but for and on behalf of the Servant Publishing Company, Limited, and as their Managing Director. Under these circumstances, there could only have been one answer to the question raised by the Appellant and in my opinion Mr. Justice Pearson rightly negatived the contention raised by the Appellant.
Mr. Roy has drawn our attention to the case of Elliot v. Bax Ironside . That case, as I read it, is entirely against Mr. Roy's contention. What happened in that case is this:— The action was against two Defendants as endorsers of a Bill of Exchange. Those Defendants were the Directors of a Company called the Fashions Fair Exhibitions, Ltd., and one of the Defendants was a person named Mason who was the Managing Director. The Company accepted two Bills of Exchange for 1,000 pounds each, but inasmuch as the capital of the Company was not more than 400 pounds it was suggested that the two Bills of Exchange should be endorsed by the two Directors, namely, Sir Henry Bax Ironside and Mr. R.A Mason. They accordingly endorsed the two Bills of Exchange and the contention that was sought to be canvassed on their behalf before the Judge in the Court of first instance and in the Court of Appeal was that they had not accepted any personal liability. It was held that having regard to the facts, although they had described themselves as Directors, they were really guaranteeing a debt due by the Fashions Fair Exhibitions, Ltd., and that they accordingly could not avoid liability as guarantors. Both on law and on facts, this case, as I read it, is against the contention put forward before us by Mr. Roy.
On all these grounds, I am of opinion that this appeal should stand dismissed with costs.
Buckland, J.:— I agree.
Messrs K.K Dutt & Co., Solicitors for the Appellant.
Messrs Orr, Dignam & Co., Solicitors for the Respondent.
D.N.S
P.C