KAILASH CHANDRA AGRAWAL Vs. BRAJMOHAN LAL SHARMA

JUDGEMENT

(1.) This appeal under section 96, Civil Procedure Code has been filed by the plaintiff-appellant after obtaining permission to file appeal as indigent, feeling aggrieved by the judgment and decree dated 21-9-2006 passed by learned 2nd Additional District Judge, Satna in Civil Suit No. 2-B/2006 dismissing his suit. In brief the case of plaintiff is that defendant who is a businessman is his good friend. To carry out his business and by demonstrating before the plaintiff that he is in financial crisis he made a demand of Rs. 50,000/- which plaintiff gave to him after executing a promissory note. Earlier to the execution of this document on 23-11-1998 a document of agreement was executed between the parties that if 50% of the profit which the defendant would earn in his business is not paid to the plaintiff, he (the defendant) will pay interest @ 24% per annum. In pursuance to the aforesaid, on 27-11-1998 a sum of Rs. 14,500/- was given by plaintiff to the defendant on credit. The defendant after some days again contacted plaintiff and requested that his business is not going on properly and he is in need of some more money so that he may streamline his business and the conditions embodied in the document of agreement which he has written in favour of plaintiff may be fulfilled. On 4-12-1998 a sum of Rs. 10,000/- and again on the same date he obtained a sum of Rs. 25,500/- and thus, in total the defendant has already obtained a sum of Rs. 50,000/- from him and has executed a promissory note in his favour acknowledging that whenever the plaintiff would demand to pay Rs. 50,000/- it will be paid with interest to him.

(2.) Further it has been pleaded by the plaintiff that after executing a promissory note, the defendant took back the document of agreement dated 23-11-1998 from plaintiff because he has executed a document of promissory note and he will abide the conditions mentioned in it. In para-7 of the plaint it is also pleaded that plaintiff was having a residential house in Shivrampur, District Chitrakoot (Uttar Pradesh), which was sold for Rs. 53,000/- to Premnarayan Singh and said amount was invested in Kisan Vikas Patra, G.P.O. Post Office, Satna, but, in order to fulfil the request of defendant the said Kisan Vikas Patra was encashed before its due date. The defendant did not pay any amount either towards the principal or towards the interest despite twice the demand was made by the plaintiff. The plaintiff is not a moneylender but the amount was given towards loan to the defendant because defendant is his good friend. Ultimately, when the principal amount and the interest was not paid by the defendant a registered acknowledgment due notice was sent by post to him on 18-6-2001, but, it was received back to the plaintiff with the endorsement of the postman 'refused to accept'. Hence, the present suit has been filed by the plaintiff and it has been prayed that Rs. 50,000/- towards principal and Rs. 32,000/- towards interest, in total for Rs. 82,000/- the suit of plaintiff be decreed. An amount of interest @ 24% per annum in stipulation of paying 50% of profit by the defendant, from the date of filing of the suit till its realization has also been prayed in the plaint.

(3.) The defendant denied the plaint averments by filing a written statement and specifically denied that he had made any demand of Rs. 50,000/- from the plaintiff and ever executed any promissory note in his favour. The factum of execution of agreement as well as receiving any notice has also been denied by him. In special plea it has been pleaded that on bare perusal of the document alleged to be stated as the promissory note, indeed is not a promissory note because a promissory note is an instrument in writing containing unconditional undertaking signed by the maker, to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument. Thus, prayed that the suit be dismissed.