PURUSHOTHAMAN PILLAI Vs. KURIAN

JUDGEMENT

(1.) The petitioner in A. D. R. P. 124/1959 before the Munsiff's Court, Thiruvella, is the revision petitioner. He filed an application under S.4, 8 and 9 of Act 31 of 1958 for the discharge of the debt due to the 2nd respondent in this petition in instalments. The petitioner and the 1st respondent here, were having money transactions and on that account an amount of Rs. 379 with interest thereon was due to him. On 30th Kumbham 1126 the petitioner executed a pronote Ex. D 1 in favour of the 1st respondent for Rs. 647, viz., the amount of Rs. 379 and the interest thereon. Subsequently the petitioner borrowed Rs. 100 from the 1st respondent and for this amount together with Ex. D 1 amount the petitioner executed a pronote Ex. D 2 in favour of the 1st respondent on 28th March 1953. Ex. D 2 was for an amount of Rs. 884. According to the petitioner Ex. D 2 pronote was renewed by executing Ex. D 3 pronote in favour of the 2nd respondent on 29th February 1956. Ex. D 3 note was for Rs. 1,116. The petitioner's case was that this note was executed in favour of the 2nd respondent benami for the 1st respondent, the 2nd respondent, being the 1st respondent's sister's son. According to the petitioner the principal amounts due were Rs. 379-2-4 and Rs. 100 and the creditor could claim only a moiety of them by way of interest.

(2.) The respondents contended that Ex. D 3 note was an independent transaction between the petitioner and the 2nd respondent and that it was not in renewal of Ex. D2 note.

(3.) The court of first instance held that the petitioner was bound to pay the amount due under Ex. D 3 note with 5 per cent interest from the date of the commencement of the Act as the benami character of Ex. D 3 was not proved, and posted the case for the parties to file statements. The petitioner filed an appeal against the order. The appellate court held that it was not open to the petitioner to contend that Ex. D 3 was executed in favour of the 2nd respondent benami for the 1st respondent as S.78 of the Negotiable Instruments Act would preclude him from proving this contention and as there was no evidence to support it and dismissed the appeal.