KAPIL DEO PANDEY Vs. VASUDEB DEVSHANKAR SHUKLA

JUDGEMENT

(1.) THIS appeal by the defendant is directed against the order passed by the Learned judge of the Court of the first instance; on 16th June, 1982 upon the applications; made by the plaintiff under Chapter xiiia of the Original Side Rules of this court.

(2.) IN or about 1980, the plaintiff. Vasudeb Devshankar Shukla instituted a suit against the defendant, the appellant before us, inter alia, for a decree for' rs. 4,41,350. 32/ -. The plaintiff once obtained an ex-parte decree against; the defendant for the sum as claimed in the plaint. The defendant made an application for setting aside of the said decree and upon payment of assessed costs the decree was set aside. It appears that no direction, however, was given to the defendant to file written statement.

(3.) ON 20th January, 1982 the plaintiff made an application under Chapter xiiia. The defendant contested the application by filing affidavit -in -opposition. The plaintiff filed affidavit- in- reply. In the affidavit in support of the application under Chapter XIIIA the plaintiff has alleged that on the request and orders of the defendant, the plaintiff had from time to time supplied coal to various concerns and the defendant who is interested in and connected with the said concerns agreed to pay the price of such supplies. The defendant, it is alleged, by writing dated 12th September, 1979 and signed by him confirmed and unconditionally acknowledged that a sum of Rs. 4,16,836. 32p. was due and payable by the defendant to the plaintiff with agreed interest at the rate of 12% per annum. The alternative case is that on or about September 12, 1979 the accounts in respect of transactions between the parties were gone into and stated by the said writing dated September 12, 1979 by and between the plaintiff and the defendant in Calcutta and signed by the defendant. By the said writing, the defendant confirmed that a sum of Rs. 4,16,836,32p. was due and payable by him to the plaintiff with agreed interest of 12% per annum. It is also alleged that along with7 the said writing ] dated 12th September, 1979 the defendant had sent to the plaintiff a promissory note for Rs. 4,16,836. 32p. repayable with agreed interest at the rate of 12% per annum in favour of the plaintiff, but the said promissory note has since been mis-placed by the plaintiff and is not traceable at present. The case which is not made out in the plaint but made out! in the affidavit in support of the said application is that the defendant had also on a previous occasion confirmed in writing dated 24th December, 1976 on the letter head of one Hindusthan Coal. Suppliers the amount then due (Rs. 4,16,836. 32p.) from him to the plaintiff in respect of the said transactions.