SIDRAMAPPA BASAPPA ATNURE Vs. BIPINCHAND FULCHAND GANDHI

JUDGEMENT

(1.) A somewhat interesting point is required to be considered in this second appeal and the question that arises is whether notwithstanding, the provisions of as. 91 and 92 of the Indian Evidence Act, it is permissible for the Court to allow a party to show that the contract as mentioned in the relevant document or documents was not the real contract between the parties but that the transaction was something different.

(2.) IT is necessary to set out the relevant facts for the purpose of determining this question. The defendant Sidaramappa has been carrying on the business of letting out on hire bicycles and furniture in the city of Sholapur. Sometime in 1962 he required certain additional finance for his business and for that purpose he got an advertisement to be issued in the news paper 'Daily Sakal' calling upon persons who were interested in. financing a business with him to communicate with him. In response to this advertisement, the plaintiff Bipinchand a trader of Poona, wrote to the defendant and agreed to advance to him a sum of Rs. 5,000 as a loan. As a result of the negotiations between the parties, two documents came to be executed. Firstly a document which is described as a mortgage -deed in respect of bioycles, spare -parts and furniture etc. in the shop of the defendant at Sholapur. Although this document is described as a mortgage -deed, it would appear that it is really a pledge. The material terms of this document which has been produced by the plaintiff at exh. 64) are that the plaintiff had advanced to the defendant for trade purposes a sum of Rs. 5,000 and that as security for the said loan amount the defendant had given to the plaintiff possession of the moveable property of his running business as mentioned in schedule A and B thereto. The market value of the moveable properties was stated to be Rs. 10,000 and it was agreed by the defendant that this property would remain as security with the plaintiff until the amount borrowed from him was paid off fully. The period of the loan was fixed at five years and the document further permitted the plaintiff in the event of default to sell away the moveable property pledged with the plaintiff, either by public auction or by private arrangement. It may be mentioned that this document which is described as mortgage -deed of moveables was executed on September 23, 1962. Contemporaneously and on the very same day, the defendant was asked to execute another document and this document exh. 45 is described as a rent -note by which the defendant Sidaramappa purported to take on hire from the plaintiff Bipinchand the moveable property mentioned in the schedule to the rent -note.

(3.) THERE is no dispute between the parties that the moveable properties which are the subject -matter of the mortgage -deed and the rent -note, were laying at Sholapur and that they were neither physically pledged or handed over under the mortgage -deed by the defendant to the plaintiff; nor were they handed back under the rent -note by the plaintiff to the defendant. But the parties agreed that for all practical and legal purposes it was to be taken as if the handing over possession of the moveables had been effected in both the oases.