BRAJA KISHORE DIKSHIT Vs. PURNA CHANDRA PANDA

JUDGEMENT

(1.) THIS is an appeal by defendant No. 1 against the concurrent Judgments of both the Courts below decreeing the plaintiff's suit. The plaintiff filed the suit for recovery of a sum of Rs. 1,047 from defendant No. 1 on the foot of a hand -note dated 4 -1 -46 (Ex. 1). This handnote was executed by defendant No. 1 in favour of defendant No. 2. The plaintiff is the son of defendant No. 2. Defendant No. 2 died during the pendency of the appeal in the Court below and his widow, Mst. Rohini Pandiani, was impleaded as respondent No. 2. Defendant No. 1 is the son -in -law of an agnate of defendant No. 2. The plaintiff's case was that defendant No. 1 borrowed the sum of Rs. 900 from defendant No. 2 on 4 -1 -46 and executed the suit -pronote promising to pay on demand. Defendant No. 2 subsequently endorsed this Ex. 1 in favour of his son on 6 -9 -48 (Ex. 1 -A). As defendant No. 1 failed to pay in spite of repeated demands, plaintiff filed the present suit. Defendant No. 2 though served with notice did not appear when the suit was called. Defendant No. 1's defence, however, was that he did not borrow any money from defendant No. 2 and the document, Ex. 1 is not promissory note and further defendant No. 2 had not the capacity to advance the loan in question to him, he himself being a debtor to several other persons at the relevant date. On the date of the execution of the handnote, i.e., 4 -1 -46, defendant No. 2 executed a sale -deed (Ex. C) in favour of defendant No. 1 for a sum of Rs. 1,700 in respect of one pie gountie right with appurtenant Bhogra lands covering an area of 2.50 acres. Out of this Rs. 1,700, defendant No. 2 kept in deposit Rs. 900 with defendant No. 1 for which he passed a receipt which is now described as a pro -note (Ex. 1). In about February 1946, defendant No. 2 requested defendant No. 1 to deposit that sum of Rs. 900 with one Madhusudan Panda (D.W. 6). This D.W. 6 on receipt of the said amount passed a receipt in favour of defendant No. 2 and his wife. Therefore whatever liability the defendant No. 1 had, was thus discharged. Ex. 1 was not returned though the money was paid on the ground that it was misplaced somewhere, and defendant No. 1 being a relation of the family believed in the words of defendant No. 2 and did not press for it. A few months after the execution of the deed of sale, defendant No. 2 and his son trespassed into the land sold under (Ex. 1 -C) and cut and carried away the paddy crops raised thereon which necessitated the filing of a Title Suit (No. 3/47) in the Court of the Subordinate Judge of Sambalpur by defendant No. 1 for recovery of possession and for mesne profits; which suit was decreed on 17 -12 -47. On account of this, defendant No. 2 transferred Ex. 1 in spite of the payment to D.W. 6 in favour of his son and thereafter he had filed the present suit.

(2.) THE learned Subordinate Judge who heard the suit at the first instance, came to the conclusion that defendant No. 1 did not borrow Rs. 900 under Ex. 1. But he held Ex. 1 to be a promissory note. He accepted the defence version that defendant No. 1 had paid Rs. 900 to D.W. 6 at the direction of defendant No. 2 and D.W. 6 in his turn executed a receipt in favour of defendant No. 2 and his wife. He further found that the plaintiff had no knowledge of this deposit with D.W. 6 and he was a holder of the promissory note 'in due course'. He further found that defendant No. 1 failed to prove that the deposit with defendant No. 6 was the amount covered by Ex. 1. He also came to the finding that there was no evidence that the endorsement was without consideration and accordingly he decreed the suit. The learned District Judge on appeal concurred with all the findings of the learned Subordinate Judge stated above; but disbelieved the story of deposit with D.W. 6 by defendant No. 1 and accordingly dismissed the appeal. It is against this Judgment that the present second appeal is directed.

(3.) WITH regard to the first point, Mr. Misra contended that it is not a promissory note within the meaning of the Negotiable Instruments Act (Act XXVI of 1881) hereinafter referred to as 'the Act'. Before dealing with the provisions of the Act, I would first of all like to refer to the terms of the document itself, because the character of the document can only be decided by reference to the words employed therein. Thus the words used in the document are :