JUDGMENT
Ramesam, J.
1. Defendants 1 and 5 are the petitioners before me. The suit was brought on a promissory-note executed by defendants 1 and 5. The defendants pleaded that the promissory-note was not supported by consideration. They admit that they executed the note, but say that it was intended to be a security to cover the advance which the plaintiff was willing to pay on behalf of the defendants in connexion with an expected litigation between the vettiyaris and talayaris of the village about the Periandavan temple and, as a matter of fact, the plaintiff did not spend any money for such a dispute. There were some criminal proceedings for which the plaintiff did not pay and no civil litigation followed. The defendants, therefore, say that the note was not supported by consideration. The burden of proof is on the defendants. They examined four witnesses to prove their case. This evidence was accepted by the District Munsif who disbelieved plaintiff’s evidence, the plaintiff having sworn that he paid cash for the amount. In this state of the record one would think that the plaintiff’s suit would have been dismissed. The District Munsif says:
Their (the defendants’) plea is really plaintiff’s failure to spend the money left with him for their litigation. The pro-note is supported by consideration in the shape of the stipulation entered into with plaintiff for spending the money for the litigation about their temple. Defendant’s remedy is by suit for recovery of the amount.
2. In the first sentence he suggests that money was actually borrowed by the defendants and then deposited with the plaintiff for being used for the litigation. In the second sentence he suggests that the plaintiff promised to spend the money for the expected litigation and this is good consideration for the note; and if the plaintiff did not actualy spend the money the defendants should sue the plaintiff again. This seems to be a roundabout process. I am unable to distinguish this case from a case which occurs very frequently in the business world, viz., where a man obtains permission from a Bank to overdraw his current account and for that purpose executes a promissory-note for a certain amount, Rs. 10,000 or a lakh, as the case may be. Though no amount has been drawn, to say that in such a case the Bank can sue the customer for the amount of the note and that the customer should afterwards sue the Bank again for the amount he did not draw seems to reduce matters to an absurdity. On the findings of the Court below, the note is not supported by consideration and I think the suit ought to have been dismissed with costs.
3. Mr. Ramaswami Iyer, appearing for the respondents, relies upon a case in Muhammad Umar v. Wali [1920] 2 L. L. J. 306 In that case we are not concerned with a promissory-note but with a sale-deed. A part of the consideration for the sale-deed was not paid and the other portion of the consideration was represented by a promise of the vendee to defend an expected suit in respect of some property of the vendors. This the learned Judges held was good consideration. That is true; but I do not see how that case helps the respondent here. So far as one side was concerned his part of the contract was executed in that case, i. e., a sale-deed was executed and there was nothing for him to do. It has been very often held that where a sale-deed is executed, and it is not intended to be benami, but the consideration was not paid, the remedy of the vendor was to recover the unpaid consideration; but it cannot be said that the sale was void. In the Lahore case the lower Courts thought that the sale was without consideration and, therefore, was void. On that simple ground the appeal might be allowed. Anyhow it has nothing to do with the case before me.
4. The result is the petition is allowed and the plaintiff’s suit dismissed with costs of defendants 1 and 5 throughout. The rest of the decree against other defendants will stand.
