KARUNAKARAN Vs. DEVARAKAR DAS

JUDGEMENT

(1.) The plaintiff in a suit on a promissory note is the appellant before me and the defendants the respondents. The suit was based on Ext. A1 dated 26th May, 1950 executed by the two defendants, in favour of the plaintiff for Rs. 5,000/-. The recital of consideration in the document is for value received in cash. The defendants admitted the execution of the promissory note, but contended that it was not supported by consideration and was not therefore legally enforceable. Both the lower courts accepted the contention of the defendants and dismissed the suit and therefore the present second appeal by the plaintiff.

(2.) To appreciate the contention of the defendants a few facts which are not disputed before me, may be briefly stated. The 1st defendant was a trader in groceries and in 1950 his business failed and consequently he found himself unable to pay his creditors in full. Therefore a scheme of composition with the creditors was arrived at and every creditor agreed to receive 5as. 4ps. in the rupee in full satisfaction of his claim. The plaintiffs brother, by name Chandappan, was one of the creditors and he insisted that he would agree to the composition scheme only if he was paid in full and if a promissory note was executed in favour of his brother, the plaintiff, for the balance amount. A sum of Rs. 7,433-14-3 was due to Chandappan and after paying him 5 as. 4ps. in the rupee there remained a balance of Rs. 4,955-14-10. It is now practically admitted before me that the suit promissory note was executed for a round sum of Rs. 5,000/-, the actual amount being the aforesaid Rs. 4,955-14-10 due to the brother of the plaintiff. There was also an agreement between the plaintiff and the defendants under which the plaintiff agreed to defer the filing of the suit for three years. The present suit has been brought on Ext. A1 for the recovery of the said amount at the close of the aforesaid terra of three years.

(3.) Both the lower courts have concurrently found that the promissory note was executed in favour of the plaintiff for amounts due to his brother Chandappan. They have also found that the said promissory note was not supported by legal consideration and therefore was not legally enforceable. It is those findings that are now challenged before me in second appeal by the learned advocate of the appellant.