BISHAMBHAR DAYAL Vs. VISHWANATH

JUDGEMENT

(1.) This appeal is directed against the judgment and decree of the Additional District Judge, Gorakhpur dated May 31, 1973.

(2.) The suit giving rise to this appeal was instituted on Sept. 17, 1968 by the respondent for the recovery of a sum of Rs. 12,500/- only with the allegations that on Sept. 18,1965 the plaintiff advanced loan of Rs. 11020/-only to the defendants who agreed to repay the same with interest. On the same day the defendants 1 and 3 executed a promissory note and the accompanying receipt evidencing the loan in favour of the plaintiff. The defendant No.2 was also a member of the joint Hindu family but he could not sign the promissory note or the receipt. The amount accrued due is thus stated to be Rs. 12,500/- including interest. In defence, it was denied that the plaintiff had advanced loan of Rs. 11020/- on Sept. 18, 1965 as alleged by him or that the defendants agreed to pay interest on any such loan. The parties, it was averred, had been doing business in partnership. The defendants Nos. 1 and 3 were induced to execute a promissory note and receipt in favour of the plaintiff in connection with the accounts of the partnership. The defendant No. 2 was not a party to the transaction. On March 26, 1971 the defendants applied for amendment in the written statement which was allowed. Under the paras included in the written statement by virtue of this amendment it was pleaded that the partnership between the parties was dissolved on Sept. 20, 1959 since the plaintiff withdrew from the same. There was no accounting done when the partnership came to be dissolved. The accounts were with the plaintiff. It was given out by him that it would take time before the accounting could take place and according to him he was entitled to receive a sum of Rs. 15,000/- from the defendants. The defendants, it was added, were coerced in executing a promissory note and receipt for Rs. 1300/- dated Sept. 20, 1959 in favour of the plaintiff and further they paid a sum of Rs. 2000/- in cash to him on the same day. A sum of Rs. 4,500/- was further paid by them to the plaintiff in this connection by cheque on March 3, 1960.

(3.) The trial Court dismissed the suit on Sept. 11, 1972. The finding recorded was that the plaintiff did not advance Rs. 11020/- on Sept. 18, 1965 to the defendants and that the promissory note and the receipt in suit were not executed in the circumstances alleged by him. It was also held that the promissory note set up by the plaintiff was without consideration. The defendants did not constitute joint Hindu family and the defendant No. 2 did not derive any benefit under the transaction. The suit having been instituted on Sept. 17, 1968 was not barred by limitation.