R B SURAJ BHAN Vs. DEWAN SINGH

JUDGEMENT

(1.) This first appeal is directed against the judgment and decree dated September 30, 1963 of the Commercial Sub Judge 1st Class, Delhi, whereby the suit of the respondent/plaintiff for recovery of Rs. 53,000.00with costs was decreed against the appellant/defendant.

(2.) The suit was filed by the respondent under Order 37 of the Code of Civil Procedure on the basis of a promissory note (Exhibit P. 2) for a sum of Rs. 50,000.00 carrying interest at 6 per cent per annum payable to the respondent on demand, executed by the appellant on May 25, 1961. The amount of Rs. 50,000.00 is said to have been paid to the appellant by the respondent by means of a cheque for Rs. 50,000.00 (Exhibit P.I/I). In token of receipt of the said amount the appellant is stated to have executed a receipt (Exhibit P. 3). The appellant applied fct and was granted leave to appear and defend the suit conditional on famishing security. This has been done. The pleas taken up by the appellant in defence of the suit originally were that he had not received any payment of Rs. 50,000.00 and so, the promissory note in question was without consideration; that actually this promissory note was executed to secure additional interest to be paid by the appellant to the respondent in connection with, an agreement to sell entered into between the parties in respect of certain properties owned by the appellant which had been attached and sold in a court auction after dismissal of the appellant's objections under order 21 rule 90 Civil Procedure Code from which order an appeal was then pending in the High Court. The agreement to sell, broadly speaking, was that in case the High Court set aside the auction sale the respondent would purchase two properties of the appellant for a sum of Rs. 3,90,000.00. Another agreement between the parties to the effect that the appellant would be entitled to repurchase the properties sold to the respondent within two years and in that contingency would have to pay to the respondent interest at the rate of Rs. 1.12 per month on the amount of Rs. 3,90,000.00 was also pleaded. In this agreement of resale interest payable was to be mentioned as 10 annas per cent per month and so, for the balance interest of 8 annas per cent per month this promissory note was obtained as security. Later on the written statement was amended and a plea was taken that the promissory note which was the basis of the suit was not admissible in evidence nor could it be admitted into evidence as there was no proper cancellation of the four revenue stamps affixed on the said promissory note. The amended written statement was filed after the parties had led evidence. This amendment was allowed.

(3.) The respondent in his replication denied that the promissory note had any connection with the agreement to sell pleaded by the appellant and reiterated his case about the said promissory note being for consideration.