AMBALAL PURUSOTTAMDAS AND CO Vs. JAWARLAL PURSOTTAM DAVE

JUDGEMENT

(1.) This is an application by the defendants for leave to appear and defend this suit which has been instituted by the plaintiff under Order 37, Civil P.C. The summons was taken out on 30-3-1953.

(2.) The suit is one for the recovery of a sum of Rs. 19,129-12-6 as principal and Rs. 500/- as interest due on a promissory note dated 17-4-1952.

(3.) Many interesting and important points have been raised in this application. The defendants contend first that Order 37, Civil P.C. is 'ultra vires' the Constitution and is against the principle of natural justice. The next point taken is that the promissory note in this case is not really a promissory note because it is endorsed on an account book of the plaintiff and also because the language is not really the language of the usual promissory note. On merits, however, there is very little defence except some agreement is pleaded in the presence of one Doyalal Dave No. 24/25, Rup Chand Roy Street, Calcutta, by which it is said that the. defendant firm would pay the sum of Rs. 16,129-12-6, by ten annual instalments. It is said that the defendants carry on business as members of a joint Hindu family under the name and style of Ram Sankar Purushottam Dave. There is no supporting affidavit, however, of Doyalal Dave, and the reason given is that he is in his native place laid down with Typhoid.