{"id":184484,"date":"1965-03-09T00:00:00","date_gmt":"1965-03-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-chattanatha-karayalar-vs-the-central-bank-of-india-and-on-9-march-1965"},"modified":"2015-10-10T12:11:31","modified_gmt":"2015-10-10T06:41:31","slug":"s-chattanatha-karayalar-vs-the-central-bank-of-india-and-on-9-march-1965","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-chattanatha-karayalar-vs-the-central-bank-of-india-and-on-9-march-1965","title":{"rendered":"S. Chattanatha Karayalar vs The Central Bank Of India And … on 9 March, 1965"},"content":{"rendered":"
Supreme Court of India<\/div>\n
S. Chattanatha Karayalar vs The Central Bank Of India And … on 9 March, 1965<\/div>\n
Equivalent citations: 1965 AIR 1856, \t\t 1965 SCR (3) 318<\/div>\n
Author: V Ramaswami<\/div>\n
Bench: Ramaswami, V.<\/div>\n
           PETITIONER:\nS. CHATTANATHA KARAYALAR\n\n\tVs.\n\nRESPONDENT:\nTHE CENTRAL BANK OF INDIA AND OTHERS\n\nDATE OF JUDGMENT:\n09\/03\/1965\n\nBENCH:\nRAMASWAMI, V.\nBENCH:\nRAMASWAMI, V.\nGAJENDRAGADKAR, P.B. (CJ)\nDAYAL, RAGHUBAR\n\nCITATION:\n 1965 AIR 1856\t\t  1965 SCR  (3) 318\n\n\nACT:\nPromissory  Note,  Letter of  continuity  and  Hypothecation\nAgreement -Interpretation of -Liability\t if as surety of co-\nobligant.\n\n\n\nHEADNOTE:\nOn the basis of a promissory note and a letter of continuity\nexecuted by the appellant and respondent Nos. 2 and 3 and  a\nhypothecation  agreement executed by the respondent  No.  2,\nthe  respondent No. 1--bank opened on overdraft\t account  in\nthe  name  of  respondent 2. In\t the  promissory  note,\t the\nappellant  and\trespondent  Nos. 2 and 3  had  \"jointly\t and\nseverally promised to pay\" the bank or order; in the  letter\nof  continuity sent along with promissory note to the  bank,\nthe appellant, respondent Nos. 2 and 3 stated that \"the said\npromissory  note is to be a surety to you for the  repayment\nof  the ultimate balance  or  sum  remaining unpaid  on\t the\noverdraft'; and in the hypothecation agreement the bank\t had\nagreed\tto  open  a cash credit account at  the\t request  of\nrespondent  No.\t 2.  The  bank\tfiled  a  suit\tagainst\t the\nappellant and respondent Nos. 2 and 3\t for recovery of the\namount due on the overdraft. The appellant and respect No. 3\npleaded,  inter alia, that they had executed the  promissory\nnote as a surety for respondent No. 2 and that they are\t not\nco-obligants.  The  Trial  Court  held\tthe  appellant\t and\nrespondent  No.\t 3, were not merely sureties  but  were\t co-\nobligants  and decreed the suit, which was affirmed  by\t the\nHigh Court. In appeal by certificate;\nHELD: The finding of the High Court was not correct. [324 C-\nD].\n    Interpreting the language of the promissory note in\t the\ncontext\t of the letter and the hypothecation agreement,\t the\nstatus of the appellant with regard to the overdraft account\nwas that of a surety and not of co-obligant. [324 A].\nIf   the transaction is contained in more than one  document\nbetween the same parties., they must be read and interpreted\ntogether  and  they  have the same.  legal  effect  for\t all\npurposes as if they are one document. [323 C].\nManks v. Whiteley, (1912) 1 Ch. 735, applied;\n    The provisions of Section 92 of the Evidence Act did not\napply  in  the present case, because the appellant  was\t not\nattempting  to\tfurnish evidence of any\t oral  agreement  in\nderogation  of\tthe  promissory\t note  but  relied  on\t the\nexistence  of a collateral agreement in writing\t the  letter\nand  the hypethecation agreement, which formed parts of\t the\nsame transaction as the promissory note. [325 H].\nCase law referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE Jurisdiction: Civil Appeal No. 405 of
\n1964.\n<\/p>\n
    Appeal from the judgment and decree dated July 18,\t1962
\nof the Kerala High Court in A.S. No. 561 of 1961.
\n    S.T.  Desai, M.S.K. Sastri and M.S. Narasimhan  for\t the
\nappellant.\n<\/p>\n
    G.S. Pathak, B. Dutta, C. Chopra, J.B. Dadachanji,\tO.C.
\nMathur and Ravinder Narain for Respondent No. 1.\n<\/p>\n
319<\/span><\/p>\n
The Judgment of the Court was delivered by
\n    Ramaswami, J.  This appeal by certificate is brought  on
\nbehalf of the 3rd defendant against the judgment and’ decree
\nof the High Court of Kerala dated July 18. 1962 in A.S.\t No.
\n561  of 1961 which affirmed the judgment and decree  of\t the
\nCourt  of the Subordinate Judge of Alleppey in O.S. No.\t 114
\nof 1957.\n<\/p>\n
    By a resolution Ex. BD dated November 25, 1946 the Board
\nof  Directors of  the 1st defendant Company  authorised\t the
\n2nd  defendant\tto obtain financial accommodation  from\t the
\nplaintiffbank to the extent of Rs. 15 lakhs under  different
\nkinds  of loans. Pursuant to this resolution the Company  by
\nits  letter  Ex.  DE  dated  November  26,  1946  asked\t for
\naccommodation for Rs. 1 lakh under clean overdraft, for\t Rs.
\n4  lakhs  under\t open loan and for Rs. 10  lakhs  under\t out
\nagency\tand  key loans. On November 26. 1946 all  the  three
\ndefendants  executed a promissory note, Ex. B in  favour  of
\n‘the plaintiff-bank for a sum of Rs. 4 lakhs. The promissory
\nnote   was  sent  to  the  plaintiff’s-bank  along  with   a
\nletter–Ex. A styled letter of continuity dated November 26,
\n1946. Ex. A reads as  follows:\n<\/p>\n
“Alleppey. 26th November, 1946.\n<\/p>\n
The Agent.\n<\/p>\n
The Central Bank of India Limited, Alleppey. Dear Sir.\n<\/p>\n
      We   beg\tto  enclose an on  demand   promote  p.\t Rs.
\n4,00,000 (Rupees Four lacs only) signed by us which is given
\nto you as security for the repayment of any overdraft  which
\nis  at\tpresent\t outstanding in our name and  also  for\t the
\nrepayment  of  any overdraft to the extent of  Rs.  4,00,000
\n(Rupees four lacs only) which we may avail of hereafter\t and
\nthe  said  Pro-Note  is\t to be a security  to  you  for\t the
\nrepayment of the ultimate balance of sum remaining unpaid on
\nthe  overdraft and we are to remain liable to  the  Pro-Note
\nnotwithstanding\t the  fact that by payments  made  into\t the
\naccount of the overdraft from time to time the overdraft may
\nfrom  time to time be reduced or extinguished or  even\tthat
\nthe balance of the said accounts may be at credit.\n<\/p>\n
\t\t\t\t\t  Yours faithfully,
\n      for CASHEW Products Corporation Ltd.\n<\/p>\n
For General Agencies Ltd. (Respondent 2)
\n  Sd\/- P.S. George\t\t     Sd\/- P.S. George
\n  (Respondent 3)\t\t   Managing Director,
\n\t\t\t\t     Managing Agents.\n<\/p>\n
  Sd\/- S. Chattanatha Karayalar\t\t   ,,\n\t(Appellant).\n  Exhibit B states:\n  \"Br. Rs. 4.00.000\n\t\t\t     Alleppy, 26th November 1946.\n320<\/span>\n<\/pre>\n
      On Demand we, the Cashew Products Corporation Ltd., S.
\nChattanatha Karayalar and P.S. George jointly and  severally
\npromise\t to pay The Central Bank of India Limited  or  order
\nthe sum of British Rs. Four Lacs only together with interest
\non such sum from this date at the rate of Two per cent\tover
\nthe  Reserve Bank of India rate with a minimum of  Five\t per
\ncent per annum with quarterly rests for value received.
\n For Cahew Products  Corporation Ltd.\n<\/p>\n
 For General Agencies Ltd.\n<\/p>\n
 Sd\/- P.S. George (Respondent 2)
\n Managing Director,
\nSd\/-P. S. George (Respondent No. 3).\n<\/p>\n
  Sd\/- S. Chattanatha Karayalar\t\t     \"\n  (Appellant).\n<\/pre>\n
    On the same day, defendant No. 1 as “Borrower”  executed
\nin   favour  of\t the  plaintiff-bank  Ex.  G,  a   deed\t  of
\nhypothecation of its stocks of goods for securing the Demand
\nCash credit. Ex. G is to the following effect:
\n\t“Hypothecation of goods to secure a Demand cash
\nCredit.\n<\/p>\n
NO.\n<\/p>\n
Amount No. 4,00,000.\n<\/p>\n
  Name.\t The Cashew Products Corporation, Limited, Quilon.
\n      The Central Bank of India, Limited (hereinafter called
\n‘the  Bank’)  having at the request of the  Cashew  Products
\nCorporation   Ltd.,   Quilon,\t(hereinafter   called\t‘the
\nBorrowers’ opened or agreed to open in the Books of the Bank
\n,at Alleppey a Cash Credit account to the extent of Rs. Four
\nlacs only with the Borrowers to remain in force until closed
\nby  the Bank and to be secured by goods to  be\thypothecated
\nwith  the Bank it is hereby agreed between the Bank and\t the
\nBorrowers (the Borrowers agreeing jointly and severally)  as
\nfollows:–\n<\/p>\n
      14. The Borrowers agree to accept as conclusive  proof
\nof the correctness of any sum claimed to be due from them to
\nthe  Bank under this agreement a statement .of account\tmade
\nout  from the books of the Banks of the Bank and  signed  by
\nthe Accountant or other duly authorised officer of the\tBank
\nwithout\t the  production of any other voucher,\tdocument  or
\npaper.\n<\/p>\n
321<\/span><\/p>\n
       15.  That this Agreement is to operate as a  security
\nfor  the balance from time to time due to the Bank and\talso
\nfor  the ultimate balance to become due to on the said\tCash
\nCredit Account and the said account is not to be  considered
\nto  be\tclosed\tfor the purpose of  this  security  and\t the
\nsecurity  of  hypothecated  goods is not  to  be  considered
\nexhausted  by reason of the said Cash Credit  Account  being
\nbrought to credit at any time or from time to time or of its
\nbeing  drawn  upon  to the full extent of said\tsum  of\t Rs.
\n4,00,000 if afterwards reopened by a payment to credit.\n<\/p>\n
       In  witness  whereof the Borrowers have\thereto\tset,
\ntheir hands this Twenty sixth day of November the  Christian
\nYear one thousand nine hundred and fortysix.
\nFor Cashew Products Corporation Ltd.,
\nFor General Agencies Ltd;\n<\/p>\n
Sd\/-\n<\/p>\n
Managing Director,
\nManaging Agents
\nSd\/-\n<\/p>\n
      Schedule\tof  goods  referred  to\t in  the   foregoing
\ninstrument,  Stocks  of\t cashewnuts,  cashew  kernels,\t tin
\nplates, Hoop Iron and other packing materials stored and  or
\nto  be stored in the factories at Kochuplamood,\t Chathanoor,
\nIthikara,  Kythakuzhi, Paripa11i, Palayamkunnu and  anyother
\nfactories  in which we may be storing from time to time\t and
\nat Cochin awaiting shipment.\n<\/p>\n
For Cashew Products Corporation Ltd;\n<\/p>\n
For General Agencies Ltd;\n<\/p>\n
\t    Sd\/-\n<\/p>\n
Managing Director,
\nManaging Agents.”\n<\/p>\n
    On\tthe  basis  of those  documents\t the  plaintiff-bank
\nopened an overdraft account in the name of defendant No.  1.
\nOn  December 21, 1949, the three documents–Ex. A. B  and  G
\nwere  renewed  in  identical terms by Exs. C, D\t and  F.  On
\nJanuary I, 1950 a sum of Rs. 3,24,645\/12\/2 became due to the
\nplaintiff-bank and on that date a demand notice-Ex. ‘0’\t was
\nsent  by the plaintiff-bank for repayment of the  amount.  A
\nsecond’\t notice—Ex.  L was sent by the  plaintiff-bank  on
\nApril  26,  1950.  On September 8.  1950  the  plaintiffbank
\nbrought a suit for the recovery of Rs. 2,86,292\/11\/11 from
\n322<\/span>
\nall the three defendants. The suit was contested by all\t the
\ndefendants.  The  case of defendant No. 1 was  that  it\t had
\nsustained  loss on account of sudden termination  of  credit
\nfacilities  by\tthe plaintiff-bank and the  amount  of\tloss
\nsustained  should  be  set  off against\t the  claim  of\t the
\nplaintiff-bank.\t Defendants Nos. 2 and 3 pleaded  that\tthey
\nhad  executed the promissory notes only as a surety for\t the
\n1st  defendant\tand that they are not co-obligants.  It\t was
\nfurther alleged that the plaintiff-bank had granted loan  to
\nthe  1st defendant in other forms such as Out  Agency  loans
\nagainst goods which were security for the open loan. It\t was
\nsaid  that  the plaintiff-bank had made adjustments  in\t the
\nopen  loan  account and in the clean over-draft\t account  by
\ndebiting  and  correspondingly crediting in  other  accounts
\nwithout\t the consent of defendants 2 and 3.  The  plaintiff-
\nbank had also allowed defendant No. 1 to over-draw freely in
\nthe  clean overdraft and open loan accounts far beyond’\t the
\nlimits\tagreed upon. It was alleged that the  plaintiff-bank
\nhad  converted secured loans into simple loans by  releasing
\ngoods covered by Bills of Lading against trust receipts\t and
\nhad  thereby  deliberately frittered away  such\t securities.
\nThey contended that they were discharged from obligation  as
\nsureties to the contract for these reasons. Upon these rival
\ncontentions  the learned Subordinate Judge of Alleppey\ttook
\nthe  view that defendants 2 and 3 were not  merely  sureties
\nbut  they were co-obligants, because they had  executed\t the
\npromissory  notes–Exs. B & D. In view of this\tfinding\t the
\nlearned\t Subordinate JUdge considered it unnecessary  to  go
\ninto the question whether defendant No. 3 was absolved\tfrom
\nhis liability “for all or any reasons set forth in para 5 of
\nthe  Consolidated’ Written Statement filed by him”.  Against
\nthe  judgment  and  decree  of\tlearned\t Subordinate  Judge,
\nAlleppey  defendant  No. 3 presented an appeal in  the\tHigh
\nCourt  of Kerala under A.S. 561 of 1961. Defendants 1 and  2
\ndid’ not appeal. The appeal was dismissed by the High  Court
\nof  Kerala on July 12, 1962. It was held by the\t High  Court
\nthat defendant No. 3 was a co-obligant and not a surety.  On
\nJuly 16, 1962 defendant No. 3 filed C.M.P. No. 5032 of\t1962
\npraying\t that the argument of the appellant with  regard  to
\nhis liability as co-obligant may be expressly dealt with  in
\nthe  judgment  of the High Court and  complaining  that\t the
\nappellant would be seriously prejudiced if the omission\t was
\nallowed to remain. Thereupon the learned Judges of the\tHigh
\nCourt  wrote  a\t supplementary judgment\t on  July  18,\t1962
\nrejecting  the further arguments addressed on behalf of\t the
\nappellant.\n<\/p>\n
    The\t first question presented for determination in\tthis
\ncase is whether the status of the 3rd defendant in regard to
\nthe transaction of overdraft account is that of a surety  or
\nof  a co-obligant. It was argued by Mr. Desai on  behalf  of
\nthe  appellant\tthat  the High Court  has  misconstrued\t the
\ncontents  of Exs. A and B in holding that the 3rd  defendant
\nhas  undertaken\t the  liability as  a  co-obligant.  It\t was
\nsubmitted   that   there  was  an   integrated\t transaction
\nconstituted  by\t the  various documents—Exs. A,  B  and  G
\nexecuted  between the parties on the same day and the  legal
\neffect\tof the documents was to confer on the 3rd  defendant
\nthe status of a surety and not of a
\n 323<\/span>
\nco-obligant.  In  our opinion, the argument put\t forward  on
\nbehalf of the appellant is well-rounded and must be accepted
\nas  correct. It is true that in the promissory\tnote–Ex.  B
\nall  the  three\t defendants  have  “jointly  and   severally
\npromised  to pay the Central Bank of India Ltd. or  order  a
\nsum  of Rs. 4 lakhs only together with interest on such\t sum
\nfrom this date”, but the transaction between the parties  is
\ncontained not merely in the promissory note–Ex. B–but also
\nin  the letter of continuity dated November 26, 1946–Ex.  A
\nwhich was sent by the defendants to the plaintiff-bank along
\nwith  promissory  note–Ex.  B on the same  date.  There  is
\nanother document executed by defendant No. 1 on November 26,
\n1946—Ex. G-Hypothecation agreement. The principle is well-
\nestablished  that  if the transaction is contained  in\tmore
\nthan one document between the same parties they must be read
\nand interpreted together and they have the same legal effect
\nfor  all purposes as if they are one document. In  Manks  v.
\nWhiteley,(1) Moulton, L.J. stated:\n<\/p>\n
\t\t   “Where  several  deeds form part  of\t one
\n\t      transaction and are contemporaneously executed
\n\t      they  have  the same effect for  all  purposes
\n\t      such  as are relevant to this case as if\tthey
\n\t      were  one deed. Each is executed on the  faith
\n\t      of  all the others being executed also and  is
\n\t      intended\tto  speak only as part\tof  the\t one
\n\t      transaction,  and\t if one is seeking  to\tmake
\n\t      equities\tapply  to the parties they  must  be
\n\t      equities\tarising out of the transaction as  a
\n\t      whole.”<\/p><\/blockquote>\n
    It\tshould\tbe  noted  in  the  present  case  that\t the
\npromissory note–Ex. B–was enclosed by the defendants along
\nwith  the letter of continuity–Ex. A before sending  it  to
\nthe plaintiff-bank. In the letter-Ex. A it is clearly stated
\nthat  the promissory note Ex. B was given to the  plaintiff-
\nbank “as security for the repayment of any overdraft to\t the
\nextent of Rs. 4,00,000”. It is further stated in Ex. A\tthat
\n“the said promissory note is to be a security to you for the
\nrepayment of the ultimate balance or sum remaining unpaid on
\nthe overdraft”. In the hypothecation agreement–Ex. G it  is
\nstated\tthat  the plaintiff-bank has agreed to open  a\tcash
\nCredit\taccount to the extent of Rs. 4 lakhs at the  request
\nof  the Cashew Products Corporation Ltd., Quilon.  According
\nto  para 15 of the hypothecation agreement it operates as  a
\nsecurity  for  the balance due to the plaintiffbank  on\t the
\nCash Credit account. Para 12 of the hypothecation  agreement
\nstates that if the net sum realised be insufficient to cover
\nthe  balance  due  to the plaintiff-bank,  defendant  No.  1
\nshould\tpay  the balance of the account on production  of  a
\nstatement of account made out from the books of the bank  as
\nprovided in the 14th Clause. Under this Clause defendant No.
\n1 agreed to accept as conclusive proof of the correctness of
\nany sum claimed to be due from it to the bank a statement of
\naccount\t made out from the books of the Bank and  signed  by
\nthe Accountant or other duly authorised officer
\n[1912] 1 ch. 735.\n<\/p>\n
(N)3SCI–8
\n324<\/span>
\nof the Bank without the production of any other document. if
\nthe  language of the promissory note—Ex. B is\t interpreted
\nin the context of Exs. A & G it is manifest that the  status
\nof the 3rd defendant with regard to the transaction was that
\nof  a  surety and not of a coobligant.\tThis  conclusion  is
\nsupported  by letters—Exs. AF dated November 27, 1947,  AM
\ndated  December\t 17, 1947 in which the Chief  Agent  of\t the
\nplaintiff-bank\t has  addressed\t defendant  No.\t 3  as\t the
\n“guarantor”.  There  are similar letters of  the  plaintiff-
\nbank,  namely,\tExs. CE dated December 28,  1947,  CG  dated
\nJanuary\t 13,  .1948,  AS dated February 23,  1949,  V  dated
\nOctober 21, 1949,dated’ December 16, 1949, IV dated  January
\n12, 1950 and ‘O’ dated March 29, 1950 in which defendant No.
\n3  is  referred\t to either as a\t “guarantor”  or  as  having
\nfurnished  a guarantee for the loan. Our concluded  opinion,
\ntherefore,  is\tthat the status of the\t3rd  defendant\twith
\nregard to the overdraft account was that of a surety and not
\nco-obligant and the finding of the High Court on this  issue
\nis not correct.\n<\/p>\n
    On\tbehalf of respondent No. 1 Mr. Pathak  stressed\t the
\nargument  that\tthere is no contract of\t suretyship  in\t the
\npresent\t case m terms of s. 126 of the Contract Act and\t the
\nplaintiff-bank\tis  not,  legally bound\t to  treat  the\t 3rd
\ndefendant  merely in the character of a surety.\t Mr.  Pathak
\nrelied upon the decision of the Madras High Court in Vyravan
\nChettiar  v. Official\/Assignee of Madras(1) in which  it  is
\npointed\t out  that  persons who are  jointly  and  severally
\nliable on promissory notes are not sureties under s. 126  of
\nthe  Contract  Act, nor do such persons\t occupy\t a  position
\nanalogous to that of a surety strictly so called to  attract
\nthe provisions of s. 141 of the Contract Act. Reference\t was
\nmade,  in this connection, to the decision of the  House  of
\nLords in Duncan Fox & Co. v. North & South Wales Bank(2)  in
\nwhich Lord Selbourne, L.C. distinguished between three kinds
\nof  cases;  (1)\t those in which there  is  an  agreement  to
\nconstitute,  for  a  particular\t purpose,  the\trelation  of
\nprincipal  and\tsurety,\t to  which  agreement  the  creditor
\nthereby\t secured is a party; (2) those in which there  is  a
\nsimilar agreement between the principal and surety only,  to
\nwhich  the creditor, is a stranger, and (3) those in  which,
\nwithout any such contract of suretyship, there is a  primary
\nand  a\tsecondary liability of two persons for one  and\t the
\nsame debt, the debt being as between the two that of one  of
\nthose  persons\tonly, and not equally of both, so  that\t the
\nother if he should be compelled to pay it, would be entitled
\nto  reimbursement from the persons by whom (as\tbetween\t the
\ntwo)  it ought to have been paid. It is pointed out  by\t the
\nlearned Lord Chancellor that in all these kinds of cases the
\nperson\twho  discharged the liability due to  the  creditor,
\nwould be entitled to the benefit of the security held by the
\ncreditor though a case of suretyship strictly speaking would
\nfall only under class 1, as a contract guarantee is confined
\nto agreements where the surety agrees with the creditor that
\nhe would discharge the liability of the principal\n<\/p>\n
(x) A.I.R. 1933 Mad.. 39.\n<\/p>\n
325<\/span><\/p>\n
debtor in case of his default. It is manifest that classes 2
\nand  3 are not cases of suretyship strictly so called.\tLord
\nSelbourne  observed  that the case before him did  not\tfall
\nwithin the first or the second class but it fell within\t the
\n3rd  class in which strictly speaking there was no  contract
\nof  suretyship.\t But the Lord Chancellor held in  that\tcase
\nthat even in the second and third class of cases the  surety
\nhas  some  right to be placed in the shoes of  the  creditor
\nwhere  he  paid the amount. The argument of Mr.\t Pathak\t was
\nthat  the  position  in\t Indian Law  is\t different  and\t the
\nprinciples  relied upon by Lord Selbourne, L.C.\t  in  Duncan
\nFox  & Co. v. North & South Wales Bank(1) did not  apply  to
\nthe  present case. Mr. Pathak referred, in this\t connection,
\nto the illustration to s. 132 of the Contract Act in support
\nof his argument. We consider that the legal proposition\t for
\nwhich Mr. Pathak is contending is correct, but the  argument
\nhas not much relevance in the present case. It is true\tthat
\ns.  126 of the Contract Act requires that the creditor\tmust
\nbe  a  party to the contract of guarantee. It is  also\ttrue
\nthat  under s. 132 of the Contract Act the creditor  is\t not
\nbound by any contract between the codebtors that one of them
\nshall  be  liable  only on the default of  ‘-he\t other\teven
\nthough the creditor may have been aware of the existence  of
\nthe  contract  between the two co-debtors.  In\tthe  present
\ncase, however, the legal position is different, because\t the
\nplaintiff-bank was a party to the contract of guarantee–Ex.
\nA which is contemporaneous with the promissory note–Ex.  B.
\nThe  plaintiff-bank  was  also a party to  the\tcontract  of
\nhypothecation  executed\t by defendant No. 1 in which  it  is
\nstated\tthat  the plaintiff-bank had agreed to open  a\tCash
\nCredit\tAccount\t to the extent of Rs. 4 lakhs in  favour  of
\ndefendant  No. 1. It is manifest, therefore, in the  present
\ncase that the requirements of s. 126 of the Contract Act are
\nsatisfied and defendant No. 3 has the status of a surety and
\nnot of a coobligant in the transaction of overdraft  account
\nopened in the name of defendant No. 1 by the plaintiff-bank.
\nOn  behalf of respondent No. 1 Mr. Pathak also\treferred  to
\nthe  decision in Venkata Krishnayya v.\tKarnedan  Kothari(2)
\nand  submitted that defendant No. 3 cannot be  permitted  to
\ngive evidence in regard to a collateral transaction in\tview
\nof  the\t bar imposed by s. 92 of the Evidence  Act  and\t his
\nposition  is  as  a co-obligant and that the  terms  of\t the
\npromissory note cannot be altered by any other\ttransaction.
\nWe  are\t unable\t to accept this\t argument  as  correct.\t The
\nprovisions of s. 92 of the Evidence Act do not apply in\t the
\npresent case, because .defendant No. 3 is not attempting  to
\nfurnish evidence of any oral agreement in derogation of\t the
\npromissory note but relying on the existence of a collateral
\nagreement  in  writing–Exs. A & G which form parts  of\t the
\nsame transaction as the promissory note–Ex. B. The decision
\nof  the Madras High Court in Venkata Krishnayya v.  Karnedan
\nKothari(2)  is, therefore, not applicable and Mr. Pathak  is
\nnot  able to make good his submission on this aspect of\t the
\ncase.\n<\/p>\n
(1) [1881] 6 A.C.I.\n<\/p>\n
(2) A.I.R. 1935 Mad. 643.\n<\/p>\n
326<\/span><\/p>\n
    It\twas  also  contended  by Mr.  Pathak  on  behalf  of
\nrespondent  No. 1 that the suit is based on  the  promissory
\nnote–Ex. B against all the three defendants and not on\t the
\noverdraft account. We do not think there is any substance in
\nthis argument. In this connection Mr. Pathak took us through
\nthe  various clauses of the plaint but there is\t no  mention
\nabout the promissory note dated December 21, 1949 except  in
\npara  6\t of  the plaint which  recites\tthat  the  defendant
\nexecuted a promissory note “as security for the repayment of
\nthe  balance  outstanding  under  the  overdraft”.  We\t are
\nsatisfied,  on\texamination of the language of\tthe  plaint,
\nthat the suit is based not upon the promissory note but upon
\nthe  balance  of the overdraft account in the books  of\t the
\nplaintiff-bank. In para 11 of the plaint the  plaintiff-bank
\nasked’\tfor  a\tdecree against the  defendants\tjointly\t and
\nseverally  “for\t the recovery of Rs. 2,85,292\/11\/11  as\t per
\naccounts  annexed”.  In\t the plaint it is  stated  that\t the
\nplaintiff  had given two notices to the defendants–Ex.\t ‘0’
\ndated January 1, 1950 and Ex. L dated April 26, 1950 but  in
\nneither\t of these notices has the plaintiff referred to\t the
\npromissory note executed by the defendants or that the\tsuit
\nwas  based’ upon the promissory note. On the  contrary,\t the
\nplaintiff-bank referred in Ex. ‘0’ to the open loan accounts
\nand asked the defendants to pay the amounts due to the\tbank
\nunder these accounts. It is, therefore, not possible for  us
\nto  accept  the contention of Mr. Pathak that  the  suit  is
\nbased  upon the promissory note and not upon the amount\t due
\non  the\t overdraft  account.  In  this\tconnection,  we\t may
\nincidentally refer to the fact that in its statement of\t the
\ncase before this Court, respondent No. 1 has clearly  stated
\nthat  the  claim  on  the  overdraft  account  against\t the
\nappellant was valid “because the overdraft was treated as in
\nfavour\tof all the defendants (appellant and  respondents  2
\nand 3 herein) and that respondent No. 2 was only  authorised
\nto operate independently on that account and that the  limit
\nunder the overdraft was placed at the disposal of respondent
\nNo.  2 by an express authority given by all  the  defendants
\n(the  appellant and respondents 2 and 3)”. This\t shows\tthat
\nrespondent  No.\t 1’s case is that the suit is  based  on  an
\noverdraft, and since the overdraft was treated as in  favour
\nof  all\t the  defendants, the appellant is  liable  for\t the
\nbalance due on it.\n<\/p>\n
    We\tshall then consider the question  whether  defendant
\nNo.  3 is discharged of his liability as a surety by  reason
\nof  the alleged conduct of the plaintiff-bank  in  violating
\nthe  terms  of\tthe  agreement–Ex.  G\tor  by\tthe  alleged
\nfraudulent  or\tnegligent conduct of the  plaintiff-bank  in
\nother ways. It was submitted on behalf of the appellant that
\nthe  plaintiff-bank  had made adjustments in the  open\tloan
\naccount\t and  in the clean overdraft account  with  the\t 1st
\ndefendant by debiting and correspondingly crediting in other
\naccounts  without  the\tconsent of  the\t appellant.  It\t was
\nfurther alleged that the plaintiff-bank had granted loans to
\nthe  1st  defendant  against  goods  covered  by  open\tloan
\nagreement and that it had converted
\n327<\/span>
\nsecured\t loans into simple loans by releasing goods  covered
\nby  the\t Bills\tof Lading against  trust  receipts  and\t had
\nthereby\t deliberately  frittered away such  securities.\t The
\nquestion at issue is a mixed question of law and fact and it
\nis  unfortunate that the High Court has not  properly  dealt
\nwith this question or given a finding whether the  appellant
\nwould  be discharged from the liability as a surety for\t the
\noverdraft  account  because of the alleged  conduct  of\t the
\nplaintiff-bank.\t We  consider it necessary  that  this\tcase
\nshould\tgo  back on remand to the High Court of\t Kerala\t for
\ndeciding the issue and to give proper relief to the parties.
\nIn this connection, it is necessary to point out that  after
\nthe  High Court delivered its judgment on July 12, 1962,  an
\napplication  was made by the learned Advocate appearing\t for
\nthe appellant that some grounds which had been urged by\t him
\nbefore the High Court had not been considered by it The High
\nCourt,\ttherefore,  adopted the somewhat unusual  course  of
\ndelivering a supplemental judgment. Mr. Desai contends\tthat
\neven  the supplemental judgment has failed to  consider\t the
\nappellant’s contention that he had been discharged by reason
\nof  the fact that adjustments were made by respondent No.  1
\nindiscriminately in respect of its dealings in three or four
\ndifferent accounts with respondent No. 2 to the prejudice of
\nthe  appellant. We have broadly indicated the nature of\t the
\ncontention raised by Mr. Desai.\n<\/p>\n
    Ordinarily. we do not permit parties to urge that points
\nraised\ton  their  behalf in the High  Court  had  not\tbeen
\nconsidered,  unless  it is established to  our\tsatisfaction
\nthat  the points in question had in fact been  urged  before
\nthe High Court and the High Court, through inadventence, has
\nfailed\tto  consider them. In the present case. we  are\t not
\nprepared  to  take the view that the grievance made  by\t Mr.
\nDesai  is  not well-rounded. It does appear that  after\t the
\nfirst  judgment was delivered, .an application was  made  by
\nthe  learned Advocate who argued the appeal  himself  before
\nthe  High Court in which he set out his complaint that\tsome
\nof the points which he had argued before the High Court\t had
\nnot  been  considered  by it. That is  why  the\t High  Court
\ndelivered  a  supplemental judgment. Aggrieved by  the\tsaid
\njudgment, the appellant filed an application for certificate
\nbefore the High Court, and in this application again he\t has
\ntaken  specific\t grounds,  e.g., under\tparagraph  6(k)\t and
\nparagraph  8 that even the supplemental judgment has  failed
\nto consider some of the points urged by him. While  granting
\nthe certificate, the High Court has made no comment on these
\ngrounds.  It  is  to be regretted that\twhen  these  grounds
\nappear\tto have been urged before the High Court,  the\tHigh
\nCourt  should  have  failed to deal with them  even  in\t its
\nsupplemental judgment. That is the reason why we think it is
\nnecessary that the matter must go back to the High Court for
\ndisposal of the appeal in the light of this judgment.
\n    Mr.\t Pathak. no doubt, seriously contested the  validity
\nof  Mr. Desai’s argument. He urged that the  adjustments  on
\nwhich  Mr. Desai has rounded his claim for discharge do\t not
\nreally support
\n328<\/span>
\nhis  case. We proposed to express no opinion on this  point.
\nAs we have just observed, the contention thus raised amounts
\nto  a mixed question of fact and law and we do not think  it
\nwould be expedient for us to deal with it ourselves when the
\nHigh Court has omitted to consider it.\n<\/p>\n
    For\t these reasons we allow this appeal, set  aside\t the
\njudgment  and decree of the High Court of Kerala dated\tJuly
\n18, 1962 in A.S. 561 of 1961 and order that the case  should
\ngo back for being reheard and redetermined by the High Court
\nin  accordance with the observations made in  our  judgment.
\nThe parties will bear their own costs upto this stage.
\nAppeal Allowed.\n<\/p>\n
329<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India S. Chattanatha Karayalar vs The Central Bank Of India And … on 9 March, 1965 Equivalent citations: 1965 AIR 1856, 1965 SCR (3) 318 Author: V Ramaswami Bench: Ramaswami, V. PETITIONER: S. CHATTANATHA KARAYALAR Vs. RESPONDENT: THE CENTRAL BANK OF INDIA AND OTHERS DATE OF JUDGMENT: 09\/03\/1965 BENCH: RAMASWAMI, V. BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-184484","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nS. 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