SARBULAL Vs. VISHALCHAND

JUDGEMENT

(1.) This appeal arises out of a suit filed by the appellant for recovery of Rs. 2437/- and interest thereon amounting to Rs. 177/- on the basis of a promissory note said to have been executed by the respondent in his favour. The suit was decreed by the Civil Judge, Second Class, Sendhwa. On an appeal being filed by the defendant against the decision of the trial court, the learned additional Civil Judge, first class, Barwani, dismissed the plaintiffs suit.

(2.) The plaintiff first averred in the plaint that on 14-6-1947 the defendant executed a promissory note for a consideration of Rs. 2437/-. The defendant admitted the execution of the promissory note; but pleaded that he did not receive any consideration. According to him, he and the plaintiff were partners in grain business; that when he asked the plaintiff to settle accounts of the business, the plaintiff promised that accounts would be settled soon and pressed him to give a promissory note for Rs. 2437/- assuring him that the note would be enforced only after the accounts of the partnership business had been finally settled. He also raised the objection that the plaintiffs claim being one arising out of a partnership transaction, he could not without asking for settlement of accounts of the business, sue on the basis of the promissory note. In his rejoinder, the plaintiff admitted that there was a partnership business between him and the defendant and that the defendant executed the promissory note for the amount which the plaintiff had advanced for the business.

(3.) The trial court found that the defendant executed the promissory note for the amount which the plaintiff had advanced from time to time towards the partnership business; that it was for consideration; that the defendant had failed to show that there was an agreement between the parties that the promissory note would be enforceable only when the final accounts of the partnership business had been taken; and that the plaintiff's suit on the basis of the promissory note was maintainable. On these findings, the plaintiff's claim was decreed. The learned additional Civil Judge, first class, Barwani, also held that the promissory note was executed by the defendant alter a partial settlement ot accounts without any condition precedent to the attachment of any obligation under the note. He, however, took the view that as the promissory note related to a partnership transaction, the plaintiff could not sue on it without asking for settlement of final accounts. Accordingly he dismissed the plaintiff's suit.