NIHALCHANDJI CHHOGMALJI Vs. BABULAL KISTURCHANDJI

JUDGEMENT

(1.) THIS is Plaintiffs appeal against the judgment and decree dated 15th December, 1982 passed in Summary Suit No. 692 of 1965 by the Judge, City Civil Court, Bombay, whereby the Plaintiffs claim for recovery of an amount of Rs. 12,751/ - together with interest thereon came to be dismissed.

(2.) THE Plaintiff had filed the abovementioned suit on the basis of a hundi dated 27th June, 1965 drawn by the Defendant on M/s, Shah Babulal Bastimal and Company at Mumbai. According to the Plaintiff, the said hundi was a Shahjog Hundi and it was for a valid consideration. The Plaintiff endorsed the said hundi in favour of one Kundanmalji Fatehchandji of Mumbai and the said Kundanmalji Fatehchandji presented the said hundi for payment to the Bank of Maharashtra. The said Bank, in its turn, presented the hundi for payment to the drawee Babulal Bastimal and Company. However, the said hundi was dishonoured by the drawee with the result, the Plaintiff was constrained to file the suit to recover the amount with interest.

(3.) THE learned Judge framed necessary issues and allowed the parties to led their respective oral and documentary evidence. Upon consideration of the evidence, the learned Judge came to the conclusion that the said hundi was not a Shahjog Hundi and, therefore, it was a Bill of Exchange within the meaning of the Negotiable Instruments Act. The learned Judge, however, held that since the said hundi was not duly stamped, it was not admissible in evidence in view of the bar of Section 43 of the Indian Stamps Act. The learned Judge accepted the Defendant's plea regarding failure of consideration. In this view of the matter, the learned Judge came to the conclusion that the Plaintiff had failed to prove his claim and, therefore, he was not entitled to recover the amount claimed. Consequently, the learned Judge dismissed the suit with costs.