BADRIDAS KOTHARI Vs. MEGHRAJ KOTHARI

JUDGEMENT

(1.) This Civil Revision under Section 115 of the Code of Civil Procedure is directed against the order passed by the Full Bench of two learned Judges of the Presidency Court of Small Cause Courts, Calcutta under Section 38 of the Presidency Small Cause Courts Act. The Bench dismissed the application under Section 38 of the Presidency Small Cause Courts Act affirming the decision of the learned single Judge of that Court dismissing the plaintiff's suit.

(2.) The facts giving rise to the points of law may be set out briefly. The plaintiff instituted the suit for recovery of Rs.844.76 paise alleged to be due by the defendant to the plaintiff. The plaintiff's pleading was that on the 5th January, 1956 he lent and advanced a sum of Rs.775 for business purpose and the defendant acknowledged the sum in writing agreeing to pay interest at -/4/- annas per cent per month. The plaintiff based his claim on a promissory note or handnote dated 5th January 1956. The defence was that the plaintiff and the defendant were speculators in the share market, the plaintiff incurred some losses in the share business on account of the laches of the defendant and therefore the defendant executed the Promissory Note. This defence was based on the allegation that the transaction between the plaintiff and the defendant was fatka or share speculation business and was a wagering contract. There was a denial of consideration.

(3.) The facts found by both the Courts may now be clearly stated with a view to appreciate point of law. Both the Courts found as a fact that the plaintiff and the defendant had dealings in the share market and in these fatka dealings the defendant became liable to the plaintiff for certain money. This was the money for which the Promissory Note was executed. The plaintiff and the defendant are related. The Promissory Note is marked Exhibit A. The defendant's case that he did not receive any cash consideration for this note has been believed and accepted to be true by both the Courts as a fact. No doubt the plaintiff produced his cash book, Exhibit 2, in support of payment. He did not produce his account book relating to this share business and it was held that that was the more important book and it was withheld by the plaintiff purposely. The promissory note or the handnote in its material portion expressly says that the defendant had received from the plaintiff Rupees 775 "in cash". The Courts have found that this was not written in the usual manner in which promissory notes were written and executed. They have also found that the document does not show that on the date it was executed the money was paid to the defendant. The plaintiff admitted in his evidence that his clerk was present at the time of the transaction but that material witness was not examined. The Courts further found that there was no corroborative evidence of payment of any cash to the defendant by the plaintiff. Both the Courts have held that the defendant suffered loss over fatka dealings in the Stock Exchange while doing business on plaintiff's account and in order to obtain money the plaintiff obtained this receipt, Exhibit 1. The Courts held that under Section 30 of the Indian Contract Act fatka dealings come under the category of wagering contracts and these are wagering contracts and therefore void. On these findings the Courts dismissed the plaintiff's suit.