SURESHBHAI MANGALDAS PATEL Vs. USHABEN N SHAH

JUDGEMENT

(1.) THIS appeal under section 100 of the Code of Civil Procedure is filed by original defendant against whom the respondent-original plaintiff filed Civil Suit No. 55 of 1989 for recovery of Rs.11500.00. The case of the plaintiff in her suit is that the plaintiff is Doctor by profession and residing in the Viramgam Town and the defendant is serving in Desai Chandulal Manilal Arts and Commerce College at Viramgam. It is further averred that the defendant established good relations with the plaintiff and projected that he was dealing in the shares and debentures and, therefore, at the instance of the defendant, the plaintiff handed over 100 shares for the value of Rs.22700.00 to the defendant at her residence at Viramgam. It is the further case of the plaintiff that after giving assurance of making payment within 21 days the defendant had taken away the above 100 shares, but he did not make payment of the amount of said shares. It is further averred that on making repeated demand by the plaintiff, the defendant paid half amount of Rs.11350.00 in cash and executed promissory note for the remaining half on 31.8.87 to be matured on 31.7.1988.

(2.) THE plaintiff has further averred that after the maturity date of promissory note, when the promissory note was presented to the defendant for payment at her place of service at the college in Viramgam, the defendant demanded some more time to make payment in respect of the amount of promissory note but thereafter,defendant did not pay the said amount and also did not give satisfactory reply. Thereafter, the plaintiff issued legal notice by Registered Post AD on 4.5.89. Still, the defendant did not make any payment as per the promissory note. The plaintiff therefore, filed the suit for recovery of the said amount with interest.

(3.) ON the basis of pleadings, learned trial Judge framed issues at Exh. 33. On appreciation of the evidence, learned trial Judge came to the conclusion that the plaintiff failed to prove the transaction of sale of 100 shares to the defendant. Learned trial Judge further came to the conclusion that the plaintiff also failed to prove that the defendant executed promissory note Exh. 43 for any consideration from the plaintiff. Learned trial Judge found that the defendant had written promissory note at the instance of and for the use by one Shri Vinodbhai M. Shah on full-scape paper whereas the plaintiff had produced part of the said full scape paper and, therefore, the plaintiff has failed to prove that the defendant had executed promissory note for discharge of debt of the plaintiff. Learned trial Judge also found that the plaintiff failed to prove that the defendant had executed promissory note at Viramgam where the plaintiff resides. On the above finding and conclusion recorded by the learned trial Judge, learned trial Judge dismissed the suit by judgment and decree dated 10th October, 1995.