RAGHUNATHSINGH Vs. NANALAL

JUDGEMENT

(1.) This second appeal by defendant was by order dated 27-1-89 admitted for final hearing on the following substantial question of law arising in the appeal.

(2.) The plaintiff filed suit against defendant on the allegation that on 1-8-72 under an arrangement by which the defendant was to supply milk, the plaintiff advanced Rupees 9,400/- in cash and obtained his thumb impression on Vahi-Khata, copy of which is Ex.P/1. The defendant on 12-8-73, 1-11-74, 10-8-76, 5-8-79 and 10-8-80 towards advance respectively deposited Rs. 185/-, 1101/-, 200/-, 200/- and 100/- totalling Rs. 1786/-. The balance of principal amount thus worked out to Rs. 17,614/-, interest at the rate of 1% per mensem to Rs. 9,666/-. The plaintiff served demand notice on the defendant on 1-10-90, 25-1-82, and 7-4-83, for the same the plaintiff also claimed Rs. 45/- as notice charge. The total amount which the defendant was liable to pay worked out to Rs. 17,325/-. The plaintiff gave up the part of the claim and claimed Rs. 15,000/- only. About limitation in para 9 of the plaint, the plaintiff claimed that defendant on dates aforesaid, deposited in the Khata amounts as described and made an acknowledgment by putting his thumb impression in presence of witnesses.

(3.) The defendant in the written statement denied that he had received Rs. 9,400/- on 1-8-72 and submitted that in 1968 he had received Rs. 6000/- from the plaintiff towards supply of milk and on that account the plaintiff without explaining him the accounts had obtained his thumb impression against a sum of Rs. 9,400/- on 1-8-72. Except admitting depositing Rs. 1101/- by supplying she-buffalo of that worth to plaintiff on 1-11-1974, the other payments were denied by him. It was submitted that about delivery of she-buffalo to plaintiff his thumb impression had been obtained at many places but he denied that he put his thumb impression on different dates as claimed. The defendant took up some other pleas which are not material to the present appeal. After trial, the trial Judge Vth Civil Judge Class-I, Indore by judgment and decree dated 3-3-1987 found payment of advance of Rs. 9,400/- by plaintiff to defendant proved, payment by defendant on five occasions totalling in all Rs. 1786/- towards advance given to him proved. He decreed the plaintiff's claim against defendant for Rs. 7,614/- with interest at the rate of 6% per annum from 12-4-83 and costs of notice with proportionate costs. He also directed payment in instalments as set out in the judgment and decree. The defendant/appellant's appeal to District Judge, Indore was unsuccessful and by judgment and decree dated 30-8-88, the learned District Judge dismissed the appeal.