Promissory note
allurisivajiraju
(Querist) 20 December 2010
This query is : Resolved
Respected Seniors,
One Mother and her Son borrowed some amount from one Mr.'X' and executed a promissory note in favour of Mr. 'X'. the said promissory note was scribed by her son who is practising advocate. In the said promissory note it was not mentioned the name and discription of her mother in the body of the said promissory Note. But both are signed on the affixing one rupee revenue stamp.
What is the fate of the said promissory note.
Thanking you in advance.
R.Ramachandran
(Expert) 20 December 2010
Unless you post the contents of the promissory note - xxxxing the names and xxxxing the amount - it is not possible to give any view.
s.subramanian
(Expert) 20 December 2010
The absence of the details of the mother in the body of the pronote will make it invalid and suspicious.
ashish lal
(Expert) 20 December 2010
agree with experts
Advocate. Arunagiri
(Expert) 20 December 2010
It may be true that his mother's name is not mentioned in the body of the promissory note, but it seems that the son's name is there in the promissory note.
So, the promissory note is valid.
Guest
(Expert) 20 December 2010
The mistake is curable. Mother cannot absolve her liability. Once a Promissory Note is signed, it is binding on her.
Parveen Kr. Aggarwal
(Expert) 21 December 2010
Section 4 of the Negotiable Instruments Act, 1881 defines a promissory note in the following words:
"4. Promissory note. A 'promissory note' is an instrument in writing (not being a bank-note or a currency-note) containing an unconditional undertaking, signed by the maker, to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument."
Even if name and description of the mother is not mentioned in the body of the promissory note but she is otherwise ascertainable from the contents and other requirements of the aforesaid provision are fulfilled, the promissory note is enforceable.
s.subramanian
(Expert) 21 December 2010
Mere signature will not and cannot prove due execution of the promissiory note as contemplated in law. The presumption under Sec.118 of the Negotiable Instruments Act cannot be invoked when the pronote is defective. Since the son is the scribe,it will not be open to the drawee to make any amends to the pronote to fill up the lacuna as the same will be treated as a material alteration in law which will invalidate the pronote further more.
M V Gupta
(Expert) 21 December 2010
The definition of the promissory note as contained in Sec.4 of the Act is clear. What is mandatory is to mention in the body of the Note the name of the payee (or mention "the bearer")and the amount payable
to the payee or his order. It is not mandatory to mention the name of the promisor as he will be signing the note as maker.However if the name of one of the makers(son) is mentioned in the Note and omits the name of the mother, mother may take the defence that it is nopt binding on her as she had not borrowed any money from the payee and her signature was obtained by misrepresenting to her the nature of the document and challenge the validity of the Note so far she is concerned.
Y V Vishweshwar Rao
(Expert) 21 December 2010
There is no wrong in filing a suit against son and mother for recovery - at the most mother may take stand that she has not borrowed and she has not executed the Note - it depends on the facts of the case after full trial of the case.
Guest
(Expert) 21 December 2010
The scribe being a practising lawyer, the judge may presume it as "an intentional omission" of his mother's name and description.
malipeddi jaggarao
(Expert) 22 December 2010
The advice of Mr.M V Gupta is based on the definition of PN under NI Act and the Opinion of Mr.Y V Vishweshwar Rao is practical. Both go simultaneously and they have explained the position in the best way.
