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Bombay High Court
Suganchand Shivdas vs Mulchand Joharimal on 15 October, 1875
Equivalent citations: (1877) ILR 1 Bom 23
Author: M Westropp
Bench: M Westropp, C Sargent


JUDGMENT

Michael Westropp, C.J.

1. The facts of this case are very clearly stated in the judgment of the Court below by Green, J., and we agree with him in his decision on those facts. We must consider that several matters combine to make up a cause of action, and that, in such a case as the present, the dishonour of a bill or hundi by the drawee is a part of the cause of action of the holder against the indorser. It has been held that notice of dishonour is a material part of the cause of action against an indorser, and that being so it seems to us to follow as a matter of course that the dishonour itself must also be a material part of that cause of action.

2. We also consider that the custom sworn to by the plaintiff’s witnesses is a reasonable one, and in accordance with the law merchant. We must regard the plaintiff as holder for value of the hundi sued on. It appears that there was a large balance due to him from Popsang and on receipt of the hundi, viz., on the 3rd June, he entered the amount to the credit of Popsang, and subsequently left this entry undisturbed. The evidence shows that he was by the custom warranted in so doing, and we consider that custom a good one.

3. With regard to the contention of the appellant that the effect of the indorsement on the hundi was to render the plaintiff an agent only for collection, we are opinion that the indorsement is no more restrictive than if it had been the direction usually given by English merchants “do the best for me.”

4. As to consideration, we think that had Popsang been the plaintiff, the defendant could not have resisted his claim. The consideration for Hundi A was Hundi B. Now the latter hundi was never presented, but that was the defendant’s own affair, and he must take the consequences. He may have thought that the plaintiff would not pay it, or he may have thought that there was a balance in favour of Popsang; but, however that may have been, the defendant did not present Hundi B, and there seems to have been no excuse for his not doing so.

5. The decree of the Court below must be affirmed with costs.

Sargent, J.

6. Concurred.


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