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  • S. 135 of the Indian Contract Act
  • S. 135 of the Contract Act
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  • S. 135 of the Indian Contract Act
  • S. 135 of the Contract Act
Smart Summary

Factual and Procedural Background

Union Bank Limited, Kumbakonam, instituted the suit in 1938 against several defendants, including the first defendant, based on a promissory note dated 21 August 1935 for Rs. 8,500, jointly and severally signed by V.R. Srinivasan and V.M. Mahalinga Iyer. The note stated that it was “security for overdraft.” [1]

The bank alleged that Srinivasan, its managing director, maintained an overdraft account and that Mahalinga Iyer signed as co-obligant after the previous co-obligant became virtually insolvent. After Srinivasan executed a trust deed in 1937 for the benefit of his creditors, the bank proceeded against Mahalinga Iyer. The Subordinate Judge rejected his defences and decreed the suit, leading to this appeal. [1]

Legal Issues Presented

  1. Whether the first defendant executed the promissory note for Rs. 8,500 as security for Srinivasan’s overdraft. [2][3]
  2. Whether the first defendant could invoke Sections 126, 132 and 135 of the Indian Contract Act to claim discharge as a surety after the bank’s alleged assent to Srinivasan’s trust deed. [4]
  3. Whether the words “security for overdraft” invalidated the promissory note. [5]
  4. Whether the decree improperly awarded interest on an amount that already included interest up to the date of the plaint. [6]

Arguments of the Parties

First Defendant's Arguments

  • He denied executing a promissory note for Rs. 8,500 or signing any document as security for an overdraft, asserting that the document originally recorded only Rs. 500 and that the figure 8 was added later. [2]
  • He claimed that he believed the transaction involved a single loan and that his liability would end once that loan was repaid. [7]
  • He argued that the bank’s assent to Srinivasan’s trust deed amounted to a composition, extension of time, or agreement not to sue under Section 135 of the Indian Contract Act, thereby discharging him as a surety. [4]
  • He faintly argued that the document ceased to be a promissory note because it contained the words “security for overdraft.” [5]

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court rejected the first defendant’s account of the execution of the document. It found that his version depended principally on his own testimony, while the supporting witness’s recollection of a casual meeting five years earlier was unreliable. The document itself showed no trace of forgery. [2]

The Court considered it implausible that the defendant failed to notice the words “security for overdraft,” which appeared immediately above the figures and on a document he had signed, completed with his father’s name and address. His prior execution of bonds to accommodate borrowers also made ignorance of the transaction’s nature unlikely. [2]

The defendant’s repudiation of the demand letter, Ex. E(1), was also rejected. The Court disbelieved his explanation that his uncle had used a signed blank sheet and concluded that the statements in the letter reflected the defendant’s own information. [3]

The Court further held that the alleged misunderstanding of “overdraft” was inconsistent with the ordinary meaning of the term and with the contents of Ex. E(1). It therefore concluded that the defendant was liable under Ex. A. [7]

Although the Court noted the argument concerning the bank’s assent to the trust deed, it held that Section 135 could not assist the defendant because he could not plead that he was a surety in this suit. Under Section 126, a surety must be party to a contract of guarantee, while Section 132 preserves the liability of parties under a promissory note despite the nature or knowledge of any separate arrangement between the principal debtor and the signatory. [4]

The Court rejected the contention that the printed words “security for overdraft” destroyed the character of the document as a promissory note. It regarded those words as a banking precaution intended to prevent a surety from relying on Section 135 against the bank. [5]

Finally, the Court corrected the decree because the sum of Rs. 9,981-1-9 already included interest up to the date of the plaint. Interest from 17 August 1938 to the date of decree was therefore directed to be calculated only on the principal sum of Rs. 8,500. [6]

Holding and Implications

Appeal dismissed, subject to modification of the decree. The first defendant remained liable under the promissory note, and the appeal was dismissed with costs except for the correction concerning the basis of post-suit interest. [8][6][9][10]

The direct effect was that the bank could recover Rs. 9,981-1-9, together with interest at eight per cent per annum on Rs. 8,500 from 17 August 1938 to the date of decree. The opinion does not discuss broader implications or state that a new precedent was established. [6]

    M.V Mahalinga Aiyar v. The Union Bank Limited, Kumbakonam

    (Delivered by King, J.)

    This suit was brought in 1938 by the Union Bank Limited, Kumbakonam, against a number of defendants of whom the case of the 1st defendant only need now be considered. It was based upon a promissory note signed by one V.R Srinivasan on the 21st August 1935 and signed also by the 1st defendant V.M Mahalinga Iyer. That promissory note is for Rs. 8500 and both the executants bind themselves jointly and severally to pay the bank that sum with interest. The figure Rs. 8500 is found at the top of the left hand corner of the promissory note and above it are the words in English, the whole of the promissory note being also in English, “security for overdraft.” It is the case of the bank that at that time V.R Srinivasan who was the managing director of the bank had an overdraft account. It was necessary for all persons having overdraft accounts to have a co-obligant. The previous co-obligant, Swaminatha Iyer, had virtually become insolvent, and it was therefore necessary for V.R Srinivasan to find some one else. He accordingly induced the 1st defendant to join with him as co-obligant in the signing of this promissory note. In 1937 V.R Srinivasan fell upon evil days and on the 7th February executed a trust deed putting all his property in the hands of trustees for the purpose of satisfying his creditors. As V.R Srinivasan thus failed, the bank is proceeding against the 1st defendant in this suit. There is no dispute that the amount of the claim is correctly calculated, and is due on the state of V.R Srinivasan's overdraft account. The 1st defendant raised many defences all of which have been rejected by the learned Subordinate Judge and the suit has been decreed. As a result the 1st defendant has filed this appeal.

    The first question which arises is a question of fact. The 1st defendant denies that he executed any promissory note for Rs. 8500 and denies that he executed any document as security for any overdraft. He says that V.R Srinivasan came to him in Tiruvadamarudur on the 21st August 1935 and told him that he wanted to borrow Rs. 500 in order to accommodate a friend and asked him, the 1st defendant, to sign Ex. A in order that he might be able to do so. The document which was thus originally signed contained the figures Rs. 500 only and the figure 8 must have been subsequently added. The learned Subordinate Judge has had little difficulty in rejecting this story. It is quite obvious that it depends entirely upon the word of the 1st defendant alone. No doubt in this respect he is supported by the evidence of a doctor (D.W 2) who says that he saw the act of signing the promissory note and saw the figures 500 appearing on it, but we are quite unable to believe that in the absence of the production of any diary or other memorandum this witness giving evidence in 1940 could have remembered these details of a casual meeting with Srinivasan and the 1st defendant five years before. It need hardly be said that there is no conceivable trace of any forgery upon Ex. A itself. Further the 1st defendant must be disbelieved when he says that he did not notice the words “security for overdraft”, upon the document. The 1st defendant has signed his own name, has written also his father's name and his address. He must therefore, as the learned Judge has pointed out have had this document before him for a few minutes, and it is inconceivable that he did not notice the words “security for overdraft” which come immediately above the figures. There is no direct proof no doubt that the 1st defendant was familiar with the meaning of the word, “overdraft” but he was a wealthy young man who had on no less than four previous occasions put his signature to bonds with the object of accommodating friends who wanted to borrow money. We think it extremely unlikely that a young man in his position and with that history of transactions behind him would be ignorant of the nature of an overdarft. There can be no doubt, we think, that the 1st defendant did sign this document Ex. A, knowing that he was signing a document for Rs. 8500 and knowing that he was doing so as security for V.R Srinivasan's overdraft.

    All possible doubt on this matter is removed by Ex. E(1) the letter which the 1st defendant sent to the bank when the bank first made its demand upon him for the settlement of the overdraft account. That letter was dated the 20th March 1937. No doubt the 1st defendant repudiates the letter entirely and explains that he had entrusted his uncle with a signed blank sheet of paper, and that all the statements made in that letter are the result of a conference held between his uncle and V.R Srinivasan's Advocate. We are utterly unable to believe this or to believe that the 1st defendant would give a signed blank sheet of paper to anybody. He also pretends that, although his uncle had been managing his affairs for many years, and they had been on good terms, he had never told his uncle the real facts about the transaction of 1935 before he handed over the sheet of paper into his uncle's hands. The whole story is, in our opinion, fantastic and we are quite certain that if the uncle negotiated on behalf of the 1st defendant he did so with knowledge of the facts and that the statements contained in Ex. E(1) are the result of the 1st defendant's own information.

    It is no doubt sought to be argued on behalf of the 1st defendant that he did not think that he was rendering himself liable for an overdraft account, that he thought that the word overdraft meant merely that a single loan was about to be advanced by the bank and that his liability would cease the moment that loan was repaid. Not only is this explanation falsified by the common acceptation of the term overdraft but it is quite clear from the contents of Ex. E(1) that in 1937 the 1st defendant was unable to think of any such case. Of course if that had in fact been the contract between him and Srinivasan there would have been no impediment whatever to his stating so explicitly in his answer to the bank. There can be no doubt therefore that subject to what is now to be said the 1st defendant is liable upon Ex. A.

    The 1st defendant however now relies upon an additional fact that V.R Srinivasan executed a trust deed in February 1937 and that the bank assented to the trust deed and was prepared to take whatever dividend might be rendered available by the trustees from Srinivasan's estate. It is argued that by this action S. 135 of the Indian Contract Act can be applied which says that a contract between the creditor and the principal debtor, by which the creditor makes a composition with, or promises to give time to, or not to sue, the principal debtor, discharges the surety, unless the surety assents to such contract. It is not necessary for us here to say positively whether the bank assented to this trust or not, although the learned Subordinate Judge finds that it did so assent. What seems clear to us is that the 1st defendant cannot possibly take advantage of S. 135 because in this suit he cannot plead that he is a surety. In order to plead that he is a surety at all under the Contract Act, he must come under the definition of that word in S. 126 and he must be a party to a contract of guarantee. “A contract of guarantee” the section runs “is a contract to perform the promise, or discharge the liability, of a third person in case of his default.” Now it is argued that the real contract here was well-known, that no one expected the 1st defendant to borrow any money from the bank and that every one understood that his sole liability was to guarantee the borrowing by Srinivasan. That does not however affect the fact that the contract between the 1st defendant and the bank is expressed in a promissory note, and according to the provisions of S. 132 whatever the contract may have been between the 1st defendant and Srinivasan and whatever the knowledge of the bank may have been of that contract the liability of both of them under the promissory note is quite unaffected by that fact.

    It was faintly suggested in argument that this promissory note ceased to be a promissory note because the words “security for overdraft” are found printed upon it; but we can see no reason or authority for accepting such an argument. It seems to us that this is a particular kind of precaution which is taken by this bank and not uncommonly by other banks in this country in order to ensure that when a customer of theirs fails to meet his obligations they can proceed against the surety without any possibility of the surety setting up S. 135 of the Contract Act against them.

    We are of opinion accordingly that the 1st defendant must fail not only upon the facts but also upon his attempt to enlist the sections of the Contract Act in his service and that he cannot in any way, escape liability upon Ex. A.

    There is however one small error in the decree which has been brought to our notice. The learned Subordinate Judge has decreed to the plaintiff a sum of Rs. 9,981-1-9 with interest thereon at the rate of eight per cent per annum from the 17th August 1938 to the date of the decree. In doing so he has overlooked the fact that the sum of Rs. 9,981-1-9 includes interest calculated upto the date of the plaint and therefore that any interest awardable from the date of plaint to the date of the decree must be only upon the principal sum due. The decree will accordingly be modified by saying “do pay to the plaintiffs the sum of Rs. 9,981-1-9 with interest on Rs. 8,500 at the rate of eight per cent per annum from the 17th August 1938 to this date.”

    Except for this slight modification the appeal must fail and is dismissed with costs.

    Appeal dismissed.

    N.R.R

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    Comments

    M.V Mahalinga Aiyar v. The Union Bank Limited, Kumbakonam
    (Aug 20, 1942)