Bank Of Bengal vs Kartick Chunder Roy And Ors. on 15 August, 1889

Calcutta High Court
Bank Of Bengal vs Kartick Chunder Roy And Ors. on 15 August, 1889
Equivalent citations: (1889) ILR 16 Cal 805
Author: W C Petheram
Bench: W C Petheram, Pigot

JUDGMENT

W. Comer Petheram, C.J.

1. This is a suit by the plaintiffs, the holders of a bill of exchange, against three persons (the drawer, the acceptor, and endorser) under the Negotiable Instruments Act (Act XXVI of 1881). Section 35 of that Act provides that, in the absence of a contract to the contrary, whoever endorses and delivers a negotiable instrument before maturity without in such endorsement expressly excluding or making conditional his own liability, is bound thereby to every subsequent holder, and the Code of Civil Procedure provides that the holder of a bill of exchange may sue all the parties to it in one action. This has been done, and there is no question that the parties are all equally liable to the plaintiffs. The learned Judge has given judgment against all three, but he has made it a condition of the judgment that no execution is to issue against the endorser until the holder has exhausted his remedies against the drawer and acceptor. We are unable to agree with the learned Judge that he had power to place such a condition upon the holder in this case. The law entitles the holder of a bill of exchange to sue all the parties in one action or in separate actions; and, having brought his suit, the judgments are practically separate, and may be enforced against each or all of the parties. We think then that the Judge was wrong in imposing this condition, and this appeal to amend the decree by striking out that condition must be decreed, but without costs.

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