Modi, J. - (1.) THESE nine appeals are directed against a common judgment of the District Judge, Bikaner, and raise identical questions. They originally came for hearing before a learned single Judge who thought fit to refer them for decision to a Bench, as the valuation of the appeals taken collectively is above Rs. 5000/-.
(2.) THE appeals arise out of nine suits filed by the plaintiff Ramkumar against the present appellant Kanhyalal, and Bansilal and Hazarilal father and son respectively. THE plaintiff's case as disclosed in the plaint in case No. 331 of 1949 was that defendants Nos. 1 and 2, namely, Bansilal and Hazarilal being father and son, were members of a joint Hindu family and carried on a joint family business, that they were building contractors and required money in connection with the execution of certain contracts which they had undertaken, and, therefore, Hazarilal as manager of the joint family business borrowed a sum of Rs. 1000/-from the plaintiff under the surety ship of defendant No. 3 Kanhyalal and agreed to pay interest at the rate of 1 per cent, per mensem, and in lieu of this arrangement between the parties, on Asad Vadi 9 Smt. 2005 (corresponding to the 1st July 1948) defendant Hazarilal on behalf of himself and his father drew a Hundi for Rs. 1000/-which was made payable after 121 days, and defendant No. 3 Kanhyalal was therein mentioned to have deposited the said money jf[k;k ckcwdUgS;kykyth odhy ds ikl Bansilal Hazarilal drew this Hundi on themselves, the Hundi being a "shahjog" Hundi, and Kanhyalal defendant appellant is said to have endorsed it on the same day in favour of the plaintiff Ramkumar. THE plaintiff's case further was that on the expiry of the "muddat", this Hundi was presented to the defendants for payment on Kati Vadi 10 Smt. 2005 (corresponding to 27th October, 1948) but no payment was made, and thus the Hundi was dishonoured. THE plaintiff, therefore, brought this suit on 23-7-1949, for Rs. 1000/-principal and Rs. 90/- as interest up to the date of suit and prayed for a decree against all the defendants. THE Hundis in the other suits namely 332 to 339 of 1949 were executed on Asad Sudi 3 Smt. 2005 (equal to 9th July 1948) and were made payable 31 days after date but apart from this difference, the other material facts on which those suits are based are the same. THE amounts claimed in these other suits are Rs. 1000/- principal and Rs. 160/by way of interest in each case. THEre is only one more point of distinction between the Hundi in suit No. 331 and the Hundis in the other suits (Nos. 332 to 339), which is material for the purposes of the present appeals and that is that whereas the endorsement on the Hundi in case No. 331 dated Asad Vadi 9 Smt. 2005 by the endorser Kanhyalal bears his signature at the end of the endorsement which was also in his own handwriting, the endorsements on the other Hundis, though they are in the handwriting of Kanhyalal, they admittedly do not bear any signature of his at the foot thereof. The suit was resisted by defendant Bansilal on the ground that he had nothing to do with the Hundis in question or with the business in connection with which they were alleged to have been executed and that his son Hazarilal carried on a separate business by himself. So far as defendant Hazarilal is concerned, he also supported his father and pleaded that they were not members of a joint Hindu family nor did they carry on any joint business and that they did their business absolutely independently of each other. Hazarilal further denied to have stood in need of borrowing any money from the plaintiff & eon-tended that there were certain speculative or wagering transactions between him & the plaintiff and, therefore, he (Hazarilal) had been prevailed upon to execute these Hundis and that as defendant No. 3 Kanhyalal was his (plaintiff's) friend, the plaintiff wanted his name to be entered in the Hundis so that Hazarilal could be precluded from attacking those transactions on the ground of their being of a wagering character. The present defendant appellant Kanhyalal did not defend the suits at all and allowed them to proceed ex parte against himself. The trial Court dismissed the suits against Bansilal but without costs, and decreed them against Hazarilal and Kanhyalal. Thereupon Kanhyalal and Bansilal went in appeal to the District Judge, Bikaner. The appeals of Eansilal (which were only in the matter of costs) were dismissed and he has not filed any further appeal. Kanhyalal's appeals were also dismissed by the District Judge and he has filed the present appeals to this Court. We may at once state that so far as the execution of the nine Hundis is concerned, there is a concurrent finding of both Courts below that these had been executed by Hazarilal. There is also a concurrent finding to the effect that the endorsement on all these Hundis is in the handwriting of the present appellant Kanhyalal, and that in case No. 331, the endorsement further bears the signature of Kanhyalal at the end thereof. These findings are clearly findings of fact and they are not open to any attack in this second appeal. Learned counsel for the defendant appellant, however, raised a number of contentions before us, based on the contention that the Negotiable Instruments Act (Act 26 of 1881) was applicable to these cases. This contention was met on the other side by a two-fold reply. In the first place it was argued that the Negotiable Instruments Act did not in terms apply to Shahjog Hundis at all, and as it was common ground between the parties that the hundis in the cases before us are Shahjog hundis, the rights of the parties could not be held to be governed by the said Act. The other contention on behalf of the plaintiff respondent was that in any case, the Negotiable Instruments Act was not in force in the former State of Bikaner in which part of Rajasthan these cases arose in 1948-49 when the present hundis came to be executed, or the present suits were brought; and, therefore, the technical provisions of that Act did not and could not come into play. We have not felt induced to go into the first contention as it appears to us to be correct that the Negotiable Instruments Act of 1881 or any similar Act was not in force in the former State of Bikaner. We shall, therefore, deal with the arguments advanced before us on the footing that the provisions of the Negotiable Instruments Act, 1881, in terms cannot be held to apply to the present cases although we are clearly of opinion that the principles underlying those provisions must be held to be applicable as rules of equity, justice and good conscience, or as being rules which are observed generally in practice among the merchants in this country.
(3.) THE first contention raised on behalf of the defendant appellant was that the endorsements made on the hundis in favour of the plaintiff were not sufficient and valid under Section 15 of the Negotiable Instruments Act as they were not signed by him except in the case of suit No. 331, as already pointed out above. We may here quote in extenso the endorsements in question. THE endorsement in case No. 331 is in these terms: ..(VERNACULAR MATTER OMMITED).. (Chunnilal was the father of Ramkumar and Sigdiwala appears to be the surname). It is obvious that it bears the signature of Kanhyalal at the end. THE endorsement on the other eight hundis was in the following terms: ..(VERNACULAR MATTER OMMITED).. THEse endorsements though in the handwriting of Kanhyaial, however, do not bear his signature at the end. It is, therefore, argued that he was not an endorser at all and no liability for the payment of the hundis arose against him. Section 15 of the Negotiable Instruments Act is in these terms: "When the maker or holder of a negotiable instrument signs the same, otherwise than as such maker, for the purpose of negotiation, on the back or face thereof or on a slip of paper annexed thereto, or so signs for the same purpose a stamped paper intended to be completed as a negotiable instrument, he is said to indorse the same and is called the "indorser"." THE question is whether in the absence of his signature at the end of the wording on the hundis In cases Nos. 332 to 339, it can be held as a valid endorsement within the meaning of Section 15 or the principle underlying therein. We may point at once in this connection that the endorsements on the hundis in cases Nos. 332 to 339 were all made in the hand-writing of the present defendant appellant Kanhyaial and this is indeed not disputed before us. THE only contention that is raised is that they should have been further signed by him in order to amount as valid endorsements. It is important to bear in mind in this connection that there is no explanation before us as to why and how Kanhyaial came to write the wording that he had sold the hundis to the plaintiff. He did not join the trial and was not prepared to swear to what was his side of the case. In these circumstances, we are persuaded to hold that the endorsements were made by him as things complete in themselves. He had written them in his own hand-writing and there could be no other objective in his writing all that he did, unless he wanted to authenticate the fact of the sale of the hundis in favour of the plaintiff. We are, therefore, disposed to hold that the endorsements in these cases were as much executed by Kanhyaial as in case No. 331 where he admittedly put his signature beneath the endorsement. We are supported in this view by the rule laid down in Eziekeil Co. v. Annoda Charan Sen, 1923 Cal 35 (AIR V 10) (A) where a number of English cases were considered such as Johnson v. Dodgson, (1837) 2 M & W 653 (B) and Caton v. Caton, (1867) LR 2 HL 127 (C), and the principle was laid down that it was not necessary that the signature in order to be binding should be at the foot of an endorsement. It may be in the beginning or middle of it. THE question always is, whether the party, not having signed it regularly at the foot, yet meant to be bound by it as it stood, or whether it was left so unsigned because he refused to complete it. In other words, whether the insertion of the name in any part of the writing was for the purpose of authenticating the instrument. THEre is not the slightest suggestion in the present case that Kanhyaial had refused to put down his signature at the foot of the endorsement because he wanted to leave it unfinished for any particular reason. On the other hand, we have no doubt whatsoever on the evidence led in this case as well as from the conduct of Kanhyaial that he had put the very endorsements on the hundis to authenticate their sale in favour of the plaintiff. We should also like to add that what matters is the substance and not the outward form of the wording, and that so long as the debtor's name has been affixed on the document in question in such a way as to make it appear that the document is his and that he is the real author of it, it does not matter what the form of signature is nor is it necessary that the signature must appear in any particular part of the document, and it may appear in any part provided that the intention of the parties is to acknowledge the instrument to be his. (See also Het Ram Padamchand, Firm v. Firm Subhag Chand Rikab Das, 1941 Oudh 376 (AIR V 38) (D) in this connection). We, therefore, hold that there was a valid endorsement in the present case and that Kanhyaial was the endorser in all of them. It was next argued that even so, the said endorsements were without consideration and that the plaintiff was not entitled to sue the defendant appellant on their basis. It was also argued that the case as disclosed in the plaint was of one character and that the Courts below have held his claim to be proved on different considerations. We propose to deal with these points together, as, in our opinion, they are connected with each other. Now, so far as the case as disclosed in the plaint is concerned, it was in the substance that the defendant appellant and his father, with whom we are not concerned, were in need of funds and that they had contacted the plaintiff for the purpose. The plaintiff, however, was not willing to pro-Vide the defendant with funds except on some kind of security and defendant Kanhyalal was the person who stood as surety. This arrangement was effectuated by Hazarilal executing certain hundis upon his own firm, Kanhyalal being the "rakhia", and these hundis were then and there endorsed by Kanhyalal in the plaintiff's favour although this roundabout method was adopted by the parties for certain reasons which were best known to themselves. This arrangement, in our opinion, clearly imports two things: (1) that consideration had passed from the plaintiff to the defendant Hazarilal through the instrumentality of Kanhyalal and that Kanhyalal had certainly undertaken the position of a surety or an endorser. This would also be the liability attaching to Kanhyalal in consonance with the principle underlying Section 37 of the Negotiable Instruments Act, according to which the drawer of a bill of exchange is, in the absence of a contract to the contrary, until acceptance and the acceptor thereafter are liable thereon as principal debtors, and the other parties thereto are liable thereon as sureties for the drawer or acceptor, as the case may be. The sworn testimony of Ramkumar is to the same effect, and it is that the defendant No. 3 Kanhyalal was desirous that the plaintiff should provide the other defendants with funds in connection with certain building contracts which they had undertaken and that although he was reluctant to do so at the beginning, he expressed his concurrence as the defendant appellant was prepared to stand as surety for the return of the money, and that it was in fulfilment of this purpose that all the hundis had been drawn by the defendants with the present appellant as the intermediary, and the latter had sold all the hundis in favour of the plaintiff. Ramkumar also said that he had paid the amounts of the hundis to defendant appellant Kanhyalal, and Kanhyalal had passed them on to Hazarilal. There is no rebuttal of this evidence whatsoever. In these circumstances, we are entirely unable to agree that there is any substantial variation between the case of the plaintiff as disclosed in the plaint and the evidence led by him at the trial to prove it. Substantially his case was the same, and, therefore, we reject the contention raised on behalf of the defendant appellant that any infirmity attaches to the plaintiff's case on this account. We are also not at all impressed by the further contention that the endorsements made by the defendant appellant were without consideration. Prom the facts which we have stated above, there is not the slightest doubt that the various sums of money covered by the nine hundis were paid by the plaintiff to the defendant appellant in the first instance, who passed them on to Hazarilal or that, alternatively, the plaintiff would never have advanced the monies to Hazarilal unless Kanhyalal was prepared to stand as surety for Hazarilal and give effect to this arrangement toy the execution of the hundis in the manner in which they were executed and the necessary endorsements by Kanhyalal were made in favour of the plaintiff. We are fully satisfied that there was consideration and that Kanhyalal cannot escape liability on this score. We are also satisfied that Kanhyalal had endorsed these hundis in favour of the plaintiff and delivered them to the latter with the object that he might recover dues thereon from the parties concerned and that he was therefore a holder in duel course having come into possession of the hundis for consideration as an endorsee thereof. It was next argued that the parties had agreed to have the matter settled by reference to arbitrators in the trial Court and that simply because one of the arbitrators had refused to act as an arbitrator at the instance of the plaintiff, the trial Court should not have superseded the reference or proceeded to decide the case itself. There is no force in this contention either. It appears that the parties including Kanhyalal had expressed their readiness in the trial Court to have the matter decided by arbitration. Thereafter one of the arbitrators expressed his unwillingness to act as an arbitrator, and the Court superseded the arbitration and decided to proceed with the case itself. It is contended that the Court did not give notice to the present appellant of such supersession and that it should have itself appointed an arbitrator or arbitrators on the failure of one of them to act as such. Reliance was placed on Section 8 of the Arbitration Act. A perusal of that section shows, however, that it is up to a party where an appointed arbitrator refuses to act to serve the other parties with a written notice to concur in the appointment or appointments or in supplying the vacancy, and if no appointment is made within fifteen clear days after the service of the said notice, the Court may, after hearing the parties itself, appoint an arbitrator or arbitrators. In the first place, Kanhyalal did not give any notice under Section 8, and it was not for the Court to give any notice to him regarding supersession of the arbitration. It must also be noted that Section 8 occurs in Chapter II which deals with arbitration without intervention of a Court, which was admittedly not the case here. The procedure as to arbitration in suits is contained in Chapter IV and Section 25 thereof provides that the provisions of the other chapters shall, so far they can be made applicable, apply to arbitration under this Chapter. There is, however, a proviso to this section, which clearly states that in any of the circumstances mentioned in Section 8 and certain other sections with which we are not concerned, the Court may, instead of filling up the vacancies or making the appointments, make an order superseding the arbitration and proceed with the suit. It is clear, therefore, that under the proviso, the Court was perfectly competent to supersede the arbitration and proceed with the suit itself. This contention therefore is also without any force. ;