S. Chattanatha Karayalar vs The Central Bank Of India And … on 9 March, 1965

           PETITIONER:
S. CHATTANATHA KARAYALAR

	Vs.

RESPONDENT:
THE CENTRAL BANK OF INDIA AND OTHERS

DATE OF JUDGMENT:
09/03/1965

BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
GAJENDRAGADKAR, P.B. (CJ)
DAYAL, RAGHUBAR

CITATION:
 1965 AIR 1856		  1965 SCR  (3) 318


ACT:
Promissory  Note,  Letter of  continuity  and  Hypothecation
Agreement -Interpretation of -Liability	 if as surety of co-
obligant.



HEADNOTE:
On the basis of a promissory note and a letter of continuity
executed by the appellant and respondent Nos. 2 and 3 and  a
hypothecation  agreement executed by the respondent  No.  2,
the  respondent No. 1--bank opened on overdraft	 account  in
the  name  of  respondent 2. In	 the  promissory  note,	 the
appellant  and	respondent  Nos. 2 and 3  had  "jointly	 and
severally promised to pay" the bank or order; in the  letter
of  continuity sent along with promissory note to the  bank,
the appellant, respondent Nos. 2 and 3 stated that "the said
promissory  note is to be a surety to you for the  repayment
of  the ultimate balance  or  sum  remaining unpaid  on	 the
overdraft'; and in the hypothecation agreement the bank	 had
agreed	to  open  a cash credit account at  the	 request  of
respondent  No.	 2.  The  bank	filed  a  suit	against	 the
appellant and respondent Nos. 2 and 3	 for recovery of the
amount due on the overdraft. The appellant and respect No. 3
pleaded,  inter alia, that they had executed the  promissory
note as a surety for respondent No. 2 and that they are	 not
co-obligants.  The  Trial  Court  held	the  appellant	 and
respondent  No.	 3, were not merely sureties  but  were	 co-
obligants  and decreed the suit, which was affirmed  by	 the
High Court. In appeal by certificate;
HELD: The finding of the High Court was not correct. [324 C-
D].
    Interpreting the language of the promissory note in	 the
context	 of the letter and the hypothecation agreement,	 the
status of the appellant with regard to the overdraft account
was that of a surety and not of co-obligant. [324 A].
If   the transaction is contained in more than one  document
between the same parties., they must be read and interpreted
together  and  they  have the same.  legal  effect  for	 all
purposes as if they are one document. [323 C].
Manks v. Whiteley, (1912) 1 Ch. 735, applied;
    The provisions of Section 92 of the Evidence Act did not
apply  in  the present case, because the appellant  was	 not
attempting  to	furnish evidence of any	 oral  agreement  in
derogation  of	the  promissory	 note  but  relied  on	 the
existence  of a collateral agreement in writing	 the  letter
and  the hypethecation agreement, which formed parts of	 the
same transaction as the promissory note. [325 H].
Case law referred to.



JUDGMENT:

CIVIL APPELLATE Jurisdiction: Civil Appeal No. 405 of
1964.

Appeal from the judgment and decree dated July 18, 1962
of the Kerala High Court in A.S. No. 561 of 1961.
S.T. Desai, M.S.K. Sastri and M.S. Narasimhan for the
appellant.

G.S. Pathak, B. Dutta, C. Chopra, J.B. Dadachanji, O.C.
Mathur and Ravinder Narain for Respondent No. 1.

319

The Judgment of the Court was delivered by
Ramaswami, J. This appeal by certificate is brought on
behalf of the 3rd defendant against the judgment and’ decree
of the High Court of Kerala dated July 18. 1962 in A.S. No.
561 of 1961 which affirmed the judgment and decree of the
Court of the Subordinate Judge of Alleppey in O.S. No. 114
of 1957.

By a resolution Ex. BD dated November 25, 1946 the Board
of Directors of the 1st defendant Company authorised the
2nd defendant to obtain financial accommodation from the
plaintiffbank to the extent of Rs. 15 lakhs under different
kinds of loans. Pursuant to this resolution the Company by
its letter Ex. DE dated November 26, 1946 asked for
accommodation for Rs. 1 lakh under clean overdraft, for Rs.
4 lakhs under open loan and for Rs. 10 lakhs under out
agency and key loans. On November 26. 1946 all the three
defendants executed a promissory note, Ex. B in favour of
‘the plaintiff-bank for a sum of Rs. 4 lakhs. The promissory
note was sent to the plaintiff’s-bank along with a
letter–Ex. A styled letter of continuity dated November 26,
1946. Ex. A reads as follows:

“Alleppey. 26th November, 1946.

The Agent.

The Central Bank of India Limited, Alleppey. Dear Sir.

We beg to enclose an on demand promote p. Rs.
4,00,000 (Rupees Four lacs only) signed by us which is given
to you as security for the repayment of any overdraft which
is at present outstanding in our name and also for the
repayment of any overdraft to the extent of Rs. 4,00,000
(Rupees four lacs only) which we may avail of hereafter and
the said Pro-Note is to be a security to you for the
repayment of the ultimate balance of sum remaining unpaid on
the overdraft and we are to remain liable to the Pro-Note
notwithstanding the fact that by payments made into the
account of the overdraft from time to time the overdraft may
from time to time be reduced or extinguished or even that
the balance of the said accounts may be at credit.

Yours faithfully,
for CASHEW Products Corporation Ltd.

For General Agencies Ltd. (Respondent 2)
Sd/- P.S. George Sd/- P.S. George
(Respondent 3) Managing Director,
Managing Agents.

  Sd/- S. Chattanatha Karayalar		   ,,
	(Appellant).
  Exhibit B states:
  "Br. Rs. 4.00.000
			     Alleppy, 26th November 1946.
320

On Demand we, the Cashew Products Corporation Ltd., S.
Chattanatha Karayalar and P.S. George jointly and severally
promise to pay The Central Bank of India Limited or order
the sum of British Rs. Four Lacs only together with interest
on such sum from this date at the rate of Two per cent over
the Reserve Bank of India rate with a minimum of Five per
cent per annum with quarterly rests for value received.
For Cahew Products Corporation Ltd.

For General Agencies Ltd.

Sd/- P.S. George (Respondent 2)
Managing Director,
Sd/-P. S. George (Respondent No. 3).

  Sd/- S. Chattanatha Karayalar		     "
  (Appellant).

On the same day, defendant No. 1 as “Borrower” executed
in favour of the plaintiff-bank Ex. G, a deed of
hypothecation of its stocks of goods for securing the Demand
Cash credit. Ex. G is to the following effect:
“Hypothecation of goods to secure a Demand cash
Credit.

NO.

Amount No. 4,00,000.

Name. The Cashew Products Corporation, Limited, Quilon.
The Central Bank of India, Limited (hereinafter called
‘the Bank’) having at the request of the Cashew Products
Corporation Ltd., Quilon, (hereinafter called ‘the
Borrowers’ opened or agreed to open in the Books of the Bank
,at Alleppey a Cash Credit account to the extent of Rs. Four
lacs only with the Borrowers to remain in force until closed
by the Bank and to be secured by goods to be hypothecated
with the Bank it is hereby agreed between the Bank and the
Borrowers (the Borrowers agreeing jointly and severally) as
follows:–

14. The Borrowers agree to accept as conclusive proof
of the correctness of any sum claimed to be due from them to
the Bank under this agreement a statement .of account made
out from the books of the Banks of the Bank and signed by
the Accountant or other duly authorised officer of the Bank
without the production of any other voucher, document or
paper.

321

15. That this Agreement is to operate as a security
for the balance from time to time due to the Bank and also
for the ultimate balance to become due to on the said Cash
Credit Account and the said account is not to be considered
to be closed for the purpose of this security and the
security of hypothecated goods is not to be considered
exhausted by reason of the said Cash Credit Account being
brought to credit at any time or from time to time or of its
being drawn upon to the full extent of said sum of Rs.
4,00,000 if afterwards reopened by a payment to credit.

In witness whereof the Borrowers have hereto set,
their hands this Twenty sixth day of November the Christian
Year one thousand nine hundred and fortysix.
For Cashew Products Corporation Ltd.,
For General Agencies Ltd;

Sd/-

Managing Director,
Managing Agents
Sd/-

Schedule of goods referred to in the foregoing
instrument, Stocks of cashewnuts, cashew kernels, tin
plates, Hoop Iron and other packing materials stored and or
to be stored in the factories at Kochuplamood, Chathanoor,
Ithikara, Kythakuzhi, Paripa11i, Palayamkunnu and anyother
factories in which we may be storing from time to time and
at Cochin awaiting shipment.

For Cashew Products Corporation Ltd;

For General Agencies Ltd;

Sd/-

Managing Director,
Managing Agents.”

On the basis of those documents the plaintiff-bank
opened an overdraft account in the name of defendant No. 1.
On December 21, 1949, the three documents–Ex. A. B and G
were renewed in identical terms by Exs. C, D and F. On
January I, 1950 a sum of Rs. 3,24,645/12/2 became due to the
plaintiff-bank and on that date a demand notice-Ex. ‘0’ was
sent by the plaintiff-bank for repayment of the amount. A
second’ notice—Ex. L was sent by the plaintiff-bank on
April 26, 1950. On September 8. 1950 the plaintiffbank
brought a suit for the recovery of Rs. 2,86,292/11/11 from
322
all the three defendants. The suit was contested by all the
defendants. The case of defendant No. 1 was that it had
sustained loss on account of sudden termination of credit
facilities by the plaintiff-bank and the amount of loss
sustained should be set off against the claim of the
plaintiff-bank. Defendants Nos. 2 and 3 pleaded that they
had executed the promissory notes only as a surety for the
1st defendant and that they are not co-obligants. It was
further alleged that the plaintiff-bank had granted loan to
the 1st defendant in other forms such as Out Agency loans
against goods which were security for the open loan. It was
said that the plaintiff-bank had made adjustments in the
open loan account and in the clean over-draft account by
debiting and correspondingly crediting in other accounts
without the consent of defendants 2 and 3. The plaintiff-
bank had also allowed defendant No. 1 to over-draw freely in
the clean overdraft and open loan accounts far beyond’ the
limits agreed upon. It was alleged that the plaintiff-bank
had converted secured loans into simple loans by releasing
goods covered by Bills of Lading against trust receipts and
had thereby deliberately frittered away such securities.
They contended that they were discharged from obligation as
sureties to the contract for these reasons. Upon these rival
contentions the learned Subordinate Judge of Alleppey took
the view that defendants 2 and 3 were not merely sureties
but they were co-obligants, because they had executed the
promissory notes–Exs. B & D. In view of this finding the
learned Subordinate JUdge considered it unnecessary to go
into the question whether defendant No. 3 was absolved from
his liability “for all or any reasons set forth in para 5 of
the Consolidated’ Written Statement filed by him”. Against
the judgment and decree of learned Subordinate Judge,
Alleppey defendant No. 3 presented an appeal in the High
Court of Kerala under A.S. 561 of 1961. Defendants 1 and 2
did’ not appeal. The appeal was dismissed by the High Court
of Kerala on July 12, 1962. It was held by the High Court
that defendant No. 3 was a co-obligant and not a surety. On
July 16, 1962 defendant No. 3 filed C.M.P. No. 5032 of 1962
praying that the argument of the appellant with regard to
his liability as co-obligant may be expressly dealt with in
the judgment of the High Court and complaining that the
appellant would be seriously prejudiced if the omission was
allowed to remain. Thereupon the learned Judges of the High
Court wrote a supplementary judgment on July 18, 1962
rejecting the further arguments addressed on behalf of the
appellant.

The first question presented for determination in this
case is whether the status of the 3rd defendant in regard to
the transaction of overdraft account is that of a surety or
of a co-obligant. It was argued by Mr. Desai on behalf of
the appellant that the High Court has misconstrued the
contents of Exs. A and B in holding that the 3rd defendant
has undertaken the liability as a co-obligant. It was
submitted that there was an integrated transaction
constituted by the various documents—Exs. A, B and G
executed between the parties on the same day and the legal
effect of the documents was to confer on the 3rd defendant
the status of a surety and not of a
323
co-obligant. In our opinion, the argument put forward on
behalf of the appellant is well-rounded and must be accepted
as correct. It is true that in the promissory note–Ex. B
all the three defendants have “jointly and severally
promised to pay the Central Bank of India Ltd. or order a
sum of Rs. 4 lakhs only together with interest on such sum
from this date”, but the transaction between the parties is
contained not merely in the promissory note–Ex. B–but also
in the letter of continuity dated November 26, 1946–Ex. A
which was sent by the defendants to the plaintiff-bank along
with promissory note–Ex. B on the same date. There is
another document executed by defendant No. 1 on November 26,
1946—Ex. G-Hypothecation agreement. The principle is well-
established that if the transaction is contained in more
than one document between the same parties they must be read
and interpreted together and they have the same legal effect
for all purposes as if they are one document. In Manks v.
Whiteley,(1) Moulton, L.J. stated:

“Where several deeds form part of one
transaction and are contemporaneously executed
they have the same effect for all purposes
such as are relevant to this case as if they
were one deed. Each is executed on the faith
of all the others being executed also and is
intended to speak only as part of the one
transaction, and if one is seeking to make
equities apply to the parties they must be
equities arising out of the transaction as a
whole.”

It should be noted in the present case that the
promissory note–Ex. B–was enclosed by the defendants along
with the letter of continuity–Ex. A before sending it to
the plaintiff-bank. In the letter-Ex. A it is clearly stated
that the promissory note Ex. B was given to the plaintiff-
bank “as security for the repayment of any overdraft to the
extent of Rs. 4,00,000”. It is further stated in Ex. A that
“the said promissory note is to be a security to you for the
repayment of the ultimate balance or sum remaining unpaid on
the overdraft”. In the hypothecation agreement–Ex. G it is
stated that the plaintiff-bank has agreed to open a cash
Credit account to the extent of Rs. 4 lakhs at the request
of the Cashew Products Corporation Ltd., Quilon. According
to para 15 of the hypothecation agreement it operates as a
security for the balance due to the plaintiffbank on the
Cash Credit account. Para 12 of the hypothecation agreement
states that if the net sum realised be insufficient to cover
the balance due to the plaintiff-bank, defendant No. 1
should pay the balance of the account on production of a
statement of account made out from the books of the bank as
provided in the 14th Clause. Under this Clause defendant No.
1 agreed to accept as conclusive proof of the correctness of
any sum claimed to be due from it to the bank a statement of
account made out from the books of the Bank and signed by
the Accountant or other duly authorised officer
[1912] 1 ch. 735.

(N)3SCI–8
324
of the Bank without the production of any other document. if
the language of the promissory note—Ex. B is interpreted
in the context of Exs. A & G it is manifest that the status
of the 3rd defendant with regard to the transaction was that
of a surety and not of a coobligant. This conclusion is
supported by letters—Exs. AF dated November 27, 1947, AM
dated December 17, 1947 in which the Chief Agent of the
plaintiff-bank has addressed defendant No. 3 as the
“guarantor”. There are similar letters of the plaintiff-
bank, namely, Exs. CE dated December 28, 1947, CG dated
January 13, .1948, AS dated February 23, 1949, V dated
October 21, 1949,dated’ December 16, 1949, IV dated January
12, 1950 and ‘O’ dated March 29, 1950 in which defendant No.
3 is referred to either as a “guarantor” or as having
furnished a guarantee for the loan. Our concluded opinion,
therefore, is that the status of the 3rd defendant with
regard to the overdraft account was that of a surety and not
co-obligant and the finding of the High Court on this issue
is not correct.

On behalf of respondent No. 1 Mr. Pathak stressed the
argument that there is no contract of suretyship in the
present case m terms of s. 126 of the Contract Act and the
plaintiff-bank is not, legally bound to treat the 3rd
defendant merely in the character of a surety. Mr. Pathak
relied upon the decision of the Madras High Court in Vyravan
Chettiar v. Official/Assignee of Madras(1) in which it is
pointed out that persons who are jointly and severally
liable on promissory notes are not sureties under s. 126 of
the Contract Act, nor do such persons occupy a position
analogous to that of a surety strictly so called to attract
the provisions of s. 141 of the Contract Act. Reference was
made, in this connection, to the decision of the House of
Lords in Duncan Fox & Co. v. North & South Wales Bank(2) in
which Lord Selbourne, L.C. distinguished between three kinds
of cases; (1) those in which there is an agreement to
constitute, for a particular purpose, the relation of
principal and surety, to which agreement the creditor
thereby secured is a party; (2) those in which there is a
similar agreement between the principal and surety only, to
which the creditor, is a stranger, and (3) those in which,
without any such contract of suretyship, there is a primary
and a secondary liability of two persons for one and the
same debt, the debt being as between the two that of one of
those persons only, and not equally of both, so that the
other if he should be compelled to pay it, would be entitled
to reimbursement from the persons by whom (as between the
two) it ought to have been paid. It is pointed out by the
learned Lord Chancellor that in all these kinds of cases the
person who discharged the liability due to the creditor,
would be entitled to the benefit of the security held by the
creditor though a case of suretyship strictly speaking would
fall only under class 1, as a contract guarantee is confined
to agreements where the surety agrees with the creditor that
he would discharge the liability of the principal

(x) A.I.R. 1933 Mad.. 39.

325

debtor in case of his default. It is manifest that classes 2
and 3 are not cases of suretyship strictly so called. Lord
Selbourne observed that the case before him did not fall
within the first or the second class but it fell within the
3rd class in which strictly speaking there was no contract
of suretyship. But the Lord Chancellor held in that case
that even in the second and third class of cases the surety
has some right to be placed in the shoes of the creditor
where he paid the amount. The argument of Mr. Pathak was
that the position in Indian Law is different and the
principles relied upon by Lord Selbourne, L.C. in Duncan
Fox & Co. v. North & South Wales Bank(1) did not apply to
the present case. Mr. Pathak referred, in this connection,
to the illustration to s. 132 of the Contract Act in support
of his argument. We consider that the legal proposition for
which Mr. Pathak is contending is correct, but the argument
has not much relevance in the present case. It is true that
s. 126 of the Contract Act requires that the creditor must
be a party to the contract of guarantee. It is also true
that under s. 132 of the Contract Act the creditor is not
bound by any contract between the codebtors that one of them
shall be liable only on the default of ‘-he other even
though the creditor may have been aware of the existence of
the contract between the two co-debtors. In the present
case, however, the legal position is different, because the
plaintiff-bank was a party to the contract of guarantee–Ex.
A which is contemporaneous with the promissory note–Ex. B.
The plaintiff-bank was also a party to the contract of
hypothecation executed by defendant No. 1 in which it is
stated that the plaintiff-bank had agreed to open a Cash
Credit Account to the extent of Rs. 4 lakhs in favour of
defendant No. 1. It is manifest, therefore, in the present
case that the requirements of s. 126 of the Contract Act are
satisfied and defendant No. 3 has the status of a surety and
not of a coobligant in the transaction of overdraft account
opened in the name of defendant No. 1 by the plaintiff-bank.
On behalf of respondent No. 1 Mr. Pathak also referred to
the decision in Venkata Krishnayya v. Karnedan Kothari(2)
and submitted that defendant No. 3 cannot be permitted to
give evidence in regard to a collateral transaction in view
of the bar imposed by s. 92 of the Evidence Act and his
position is as a co-obligant and that the terms of the
promissory note cannot be altered by any other transaction.
We are unable to accept this argument as correct. The
provisions of s. 92 of the Evidence Act do not apply in the
present case, because .defendant No. 3 is not attempting to
furnish evidence of any oral agreement in derogation of the
promissory note but relying on the existence of a collateral
agreement in writing–Exs. A & G which form parts of the
same transaction as the promissory note–Ex. B. The decision
of the Madras High Court in Venkata Krishnayya v. Karnedan
Kothari(2) is, therefore, not applicable and Mr. Pathak is
not able to make good his submission on this aspect of the
case.

(1) [1881] 6 A.C.I.

(2) A.I.R. 1935 Mad. 643.

326

It was also contended by Mr. Pathak on behalf of
respondent No. 1 that the suit is based on the promissory
note–Ex. B against all the three defendants and not on the
overdraft account. We do not think there is any substance in
this argument. In this connection Mr. Pathak took us through
the various clauses of the plaint but there is no mention
about the promissory note dated December 21, 1949 except in
para 6 of the plaint which recites that the defendant
executed a promissory note “as security for the repayment of
the balance outstanding under the overdraft”. We are
satisfied, on examination of the language of the plaint,
that the suit is based not upon the promissory note but upon
the balance of the overdraft account in the books of the
plaintiff-bank. In para 11 of the plaint the plaintiff-bank
asked’ for a decree against the defendants jointly and
severally “for the recovery of Rs. 2,85,292/11/11 as per
accounts annexed”. In the plaint it is stated that the
plaintiff had given two notices to the defendants–Ex. ‘0’
dated January 1, 1950 and Ex. L dated April 26, 1950 but in
neither of these notices has the plaintiff referred to the
promissory note executed by the defendants or that the suit
was based’ upon the promissory note. On the contrary, the
plaintiff-bank referred in Ex. ‘0’ to the open loan accounts
and asked the defendants to pay the amounts due to the bank
under these accounts. It is, therefore, not possible for us
to accept the contention of Mr. Pathak that the suit is
based upon the promissory note and not upon the amount due
on the overdraft account. In this connection, we may
incidentally refer to the fact that in its statement of the
case before this Court, respondent No. 1 has clearly stated
that the claim on the overdraft account against the
appellant was valid “because the overdraft was treated as in
favour of all the defendants (appellant and respondents 2
and 3 herein) and that respondent No. 2 was only authorised
to operate independently on that account and that the limit
under the overdraft was placed at the disposal of respondent
No. 2 by an express authority given by all the defendants
(the appellant and respondents 2 and 3)”. This shows that
respondent No. 1’s case is that the suit is based on an
overdraft, and since the overdraft was treated as in favour
of all the defendants, the appellant is liable for the
balance due on it.

We shall then consider the question whether defendant
No. 3 is discharged of his liability as a surety by reason
of the alleged conduct of the plaintiff-bank in violating
the terms of the agreement–Ex. G or by the alleged
fraudulent or negligent conduct of the plaintiff-bank in
other ways. It was submitted on behalf of the appellant that
the plaintiff-bank had made adjustments in the open loan
account and in the clean overdraft account with the 1st
defendant by debiting and correspondingly crediting in other
accounts without the consent of the appellant. It was
further alleged that the plaintiff-bank had granted loans to
the 1st defendant against goods covered by open loan
agreement and that it had converted
327
secured loans into simple loans by releasing goods covered
by the Bills of Lading against trust receipts and had
thereby deliberately frittered away such securities. The
question at issue is a mixed question of law and fact and it
is unfortunate that the High Court has not properly dealt
with this question or given a finding whether the appellant
would be discharged from the liability as a surety for the
overdraft account because of the alleged conduct of the
plaintiff-bank. We consider it necessary that this case
should go back on remand to the High Court of Kerala for
deciding the issue and to give proper relief to the parties.
In this connection, it is necessary to point out that after
the High Court delivered its judgment on July 12, 1962, an
application was made by the learned Advocate appearing for
the appellant that some grounds which had been urged by him
before the High Court had not been considered by it The High
Court, therefore, adopted the somewhat unusual course of
delivering a supplemental judgment. Mr. Desai contends that
even the supplemental judgment has failed to consider the
appellant’s contention that he had been discharged by reason
of the fact that adjustments were made by respondent No. 1
indiscriminately in respect of its dealings in three or four
different accounts with respondent No. 2 to the prejudice of
the appellant. We have broadly indicated the nature of the
contention raised by Mr. Desai.

Ordinarily. we do not permit parties to urge that points
raised on their behalf in the High Court had not been
considered, unless it is established to our satisfaction
that the points in question had in fact been urged before
the High Court and the High Court, through inadventence, has
failed to consider them. In the present case. we are not
prepared to take the view that the grievance made by Mr.
Desai is not well-rounded. It does appear that after the
first judgment was delivered, .an application was made by
the learned Advocate who argued the appeal himself before
the High Court in which he set out his complaint that some
of the points which he had argued before the High Court had
not been considered by it. That is why the High Court
delivered a supplemental judgment. Aggrieved by the said
judgment, the appellant filed an application for certificate
before the High Court, and in this application again he has
taken specific grounds, e.g., under paragraph 6(k) and
paragraph 8 that even the supplemental judgment has failed
to consider some of the points urged by him. While granting
the certificate, the High Court has made no comment on these
grounds. It is to be regretted that when these grounds
appear to have been urged before the High Court, the High
Court should have failed to deal with them even in its
supplemental judgment. That is the reason why we think it is
necessary that the matter must go back to the High Court for
disposal of the appeal in the light of this judgment.
Mr. Pathak. no doubt, seriously contested the validity
of Mr. Desai’s argument. He urged that the adjustments on
which Mr. Desai has rounded his claim for discharge do not
really support
328
his case. We proposed to express no opinion on this point.
As we have just observed, the contention thus raised amounts
to a mixed question of fact and law and we do not think it
would be expedient for us to deal with it ourselves when the
High Court has omitted to consider it.

For these reasons we allow this appeal, set aside the
judgment and decree of the High Court of Kerala dated July
18, 1962 in A.S. 561 of 1961 and order that the case should
go back for being reheard and redetermined by the High Court
in accordance with the observations made in our judgment.
The parties will bear their own costs upto this stage.
Appeal Allowed.

329