MERCANTILE BANK OF INDIA, LTD v. RAMANATHAN CHETTIAR

123-NLR-NLR-V-39-MERCANTILE-BANK-OF-INDIA,-LTD-v.-RAMANATHAN-CHETTIAR.pdf


<448 FERNANDO AJ.—Mercantile Bank of India, Ltd. ». Ramanathan Chettiar.
1937Present: Soertsz J. and Fernando AJ.
MERCANTILE BANK OF INDIA, LTD. v. RAMANATHAN
CHETTIAR. .
51—D. C. Colombo, 336.
'Promissory note—Payable to order of bank—Authority of shroff to demand’payment—Presentment for payment—Presumption from absence of
assets.
A shroff who has received authority orally from the manager of a bank- is entitled to demand payment on behalf of a bank of a promissory notepayable to the order of the bank at its office.
Where a bank is the payee of a note of which the maker does not haveany assets in the bank for the payment 'of amount due on the due date,there is a presumption of a demand or presentment and a refusal fromthe absence of assets.
^^.PPEAL from a judgment of the District Judge of Colombo.
C. Nagalingam, for third defendant, appellant.
H. V. Perera, K.C. (with him N. M. de Silva.) for plaintiff, respondent.
Cur. adv. vuIt.
June 17, 1937. Fernando A.J.—
The plaintiff-respondent sued the defendants to recover from them asum of Rs. 40,000 due on the promissory note sued upon, dated August 4,1931, by which the defendants jointly and severally promised to pay thatsum to the order of the plaintiff bank at its office in Colombo. The thirddefendant alone filed answer and pleaded inter alia that the first andsecond defendants had paid to the plaintiff Rs. 7,500 and that the 3rddefendant had paid Rs. 21,000, whereas the plaintiff admitted the pay-ment by the first and second defendants of Rs. 7,500 as pleaded by the
FERNANDO A. J.—Mercantile Bank of India, Ltd. v. Ramanathan Chettiar. 449
appellant, and also admitted that the appellant had paid Rs. 10,000 onJuly 6, 1932. The third defendant also pleaded that the plaint did notdisclose a cause of action.
On February 4, 1936, Counsel for the third defendant suggested issues6 and 9, which appear to have been duly framed. These issues were—(8) Was the note duly presented for payment ?(9) If not, can tha
plaintiff maintain this action ? The learned District Judge enteredjudgment for the plaintiff against the appellant as prayed for with costs,and the main contention put forward by Counsel for the appellant wasthat there was no presentment of the note as required by law, and thateven if the shroff of the bank did demand payment of the note fromthe third defendant’s attorney as held by the learned District Judge, theshroff had no authority to make the demand.
As I have already stated, by the note sued upon, the three defendantsjointly and severally promised to pay to the order of the plaintiff bankwithin their office in Colombo the sum of Rs. 40,000.
Counsel’s argument was that this was a note payable on demand at thebank, and that as it did not fall due on any particular date, presentmenthad to be made within a reasonable time in terms of section 45 of the Billof Exchange Ordinance in order to make the third defendant liable ; healso argued that if in fact demand was made by the shroff, the shroff assuch had no authority from the bank to make such a demand, and thateven if the shroff had authority, it was clear from the evidence that theshroff did not have the note in his possession at the time, and that hecould not exhibit the bill to the third defendant as required by section 52
, and that therefore, the presentment if any, was irregular.
The evidence of the shroff was to the effect that he was requested bythe manager of the plaintiff-bank to demand payment, and that heaccordingly did demand payment from the third defendant’s attorney.I see no reason to interfere with the finding of fact by the learned DistrictJudge, and I would, therefore, hold that the shroff did demand payment.I would also hold that the evidence given by the shroff to the effect thathe had been authorised to demand payment is sufficient in law to provehis authority. It is not suggested that an authority from the manager tothe shroff had to be in writing. Assuming, therefore, that the managercould authorise the shroff orally to demand payment, the evidence of theshroff that such a request was made is ample, if believed, to prove thatthe manager did so request the shroff.
I would, therefore, hold that a demand for payment of the money dueon the note was made by the shroff from the attorney of the third defend-ant, and it is not suggested that the demand was not within a reasonabletime in terms of section 45 (2).
With 'regard to the other points as to the presentment, it will be notedthat under the English law which is the same as ours, it is sufficient that ademand be made at the plaee appointed by the maker as the place ofpayment. In Saunderson v. Judge A had made a promissory notepayable to B or order with a memorandum that it would be paid at thehouse of C who was A’s banker. In the course of business, the note wasendorsed to C, so that the banker in the course of'business became the
1 2 H. Bl. 510.
450
In re Application for a Writ of Mandamus.
endorsee of the note made by A, and payable at C’s bank. It was heldthat “ it was not necessary that a demand should be personal. It issufficient if it be made at the place where the maker appoints it to be made.As they at whose house it was to be paid were themselves the holders ofit, it was a sufficient demand for them to turn to their books and see themaker’s account with them, and a sufficient refusal, to find that he had noeffects in their hands”. This decision was mentioned to Pollock C.B. inthe argument of Bailey v. Porter1 and that learned Judge said; “ we thinkthe case cited an express authority on this point, and we are not disposedto question it”. That was a case of a bill of exchange drawn by J. C.payable at the plaintiff’s bank, and the bill was subsequently .endorsedby W. C. to the plaintiffs. On the date when it became due, there wereno assets of J. C. in the bank, and in an action by the plaintiffs as endorseesagainst the endorser, it was held that it was not necessary to show apresentment of the bill to the acceptor, and on the authority of Saundersonv. Judge (supra) a presentment or demand at the bank was presumed and arefusal also presumed from the absence of assets in the bank. For thesereasons I would hold that a compliance with section 52 of the Ordinancewas not necessary in this case because the maker of the promissory notedid not- have any assets in the bank for the payment of the amount due.
I see no reason, therefore, to disagree with the findings of the learnedDistrict Judge, and I would dismiss the appeal with costs.
Soehtsz J.—I agree.
Appeal dismissed.