GULAMHUSAIN LALJI SAJAN Vs. CLARA DSOUZA

JUDGEMENT

(1.) The plaintiff is the holder in due course of a promissory note dated Sept. 1, 1927, executed by the defendant in favour of one Laduok. It appears that there were monetary dealings between Laduck and the defendant, an account in respect of which was made up on Sept. 1, 1927, and a sum of Rs 1784 was found due by the defendant to Laduck. The defendant is the owner of Buick Car No. Bom. Z 6391, and at the time of the first loan to her she agreed to mortgage the said car and execute a regular indenture of mortgage in favour of Laduck to whom she handed over the car also at the same time as security for the loan. At the time the promissory note in suit was executed Laduck handed back the said car to the defendant, to ply the same as his agent till repayment of the amount for which the car had been handed over to him as security. The defendant at that time acknowledged in writing that the car continued to be mortgaged to Laduok and also agreed to execute a formal mortgage deed in respect thereof, and to keep and ply the car in Bombay and transfer the same to Laduok whenever called upon by him to do so. She further agreed not to sell or assign the car before paying off the debt. Since the assignment of the promissory note to the plaintiff, the plaintiff has paid Rs. 216 on March 16, 1928, as premium for the renewal of the insurance of the car.

(2.) The first defence to the suit is that the defendant is an agriculturist within the meaning of the Dekkhan Agriculturists' Relief Act and that this Court has no jurisdiction to try the suit.

(3.) The defence on the merits is that the plaintiff is not a holder in due course. The defendant admits the dealings between herself and Laduok, and admits that she agreed to hypothecate the car to Laduck to secure the money due to him. She alleges that when she handed over the car to Laduck the latter agreed to pay her Rs. 4 every day and agreed to credit the balance of the net income in her account with him, She further alleges that Laduck failed to carry out the agreement and pressed for payment, and therefore, as a result of great pressure brought on her by Laduck and as a result of representations made to her by Laduck's agent, she passed the promissory note in suit on Sept. 1, 1927, in favour of Laduck, She alleges that she passed the said promissory note only on the condition that a statement of accounts in detail would be given to her, and that Laduck and plaintiff have failed and neglected to give an account of the income of and disbursements on the car in spite of repeated demands made by her. She further alleges that the car was in good condition when she handed it over to Laduek, and when Laduck returned it to her, she found the car to be damaged and had to take it to a garage for repairs, and she, therefore, charges Laduck with negligence, and reserves her right to 'sue him for damages. She does not deny that the car was insured, but states that the plaintiff was not entitled to insure the car. Finally, she states that on proper accounts being taken much smaller sum, if at all, would be found due by the defendant to the plaintiff, and she prays for accounts being taken of the transactions between herself and Laduck, and states the is ready and willing to pay any sure that may be found lawfully due by her the result of taking such accounts.