BHIMJI MAUJI Vs. DHIRAJLAL PANJIBAN THAKAR

JUDGEMENT

(1.) THE defendant No. 2 is the sole appellant from the judgment of the Additional district Judge, Puri confirming the decision of the learned Subordinate Judge, Puri, who passed a decree in favour of the plaintiff in a suit filed by him against the defendants for recovery of certain amount advanced to the defendants on a handnote purported to have been executed by the appellant-defendant No. 2 for the purpose of completing construction of portions of a Cinema House called Mohan Talkies at Jatni.

(2.) THE plaintiff's case is, as appears from records,, that he lent to the defendant no. 2 a sum of Rs. 3,259/- in cash on June 15, 1947 and that the defendant No. 2 had executed a hand-note promising to repay the loan on demand with interest at 12 per cent. per annum. The hand-note (Ext. 1) is, however silent about interest :-- far less that the interest was payable at the rate of 12 per cent. per annum as alleged in paragraph 2 of the plaint. The defendants not having paid the amount the plaintiff filed a suit in June 1950. In the plaint, the plaintiff claimed interest for three years at the rate of 12 per cent. per annum amounting to Rs. 1,173/4/-, the total amount claimed in the suit being Rs. 4,432/4/ -. The defence taken in the suit was that no amount was received by either of the defendants as alleged. As regards the genesis of the promissory note (Ext. 1) the defendant's case was that the plaintiff produced before the defendant No. 2 a wank paper intended to be used as a deed of partnership, at Khurda Railway station when the said defendant was on his way home (Desh ). The defendant No. 2's case was that in good faith he put his signature on the blank paper while he was in a hurry as the train was about to start. It appears that the text of the hand-note had been written by the plaintiff. There were two attesting witnesses to the document. As regards the alleged cash considerations for the hand-note, the Books of account of the plaintiff's business (Ext. 2 series) show that there was no cash balance in the hands of the plaintiff. Evidence was, however, adduced that this money was taken from his wife and necessary adjustment was made in the Books of Account. In short, the defendant No. 2 sought to establish that the document (Ext. 1) was not a genuine document and no consideration passed from the plaintiff to the defendant No. 2, Both the trial courts and the lower appellate Court were not satisfied as to the defence on merits. The learned Subordinate Judge (trial court) for the reasons fully stated in his judgment held that the defendant No. 1 could not be made liable for the loan and it was defendant No. 2, the executant of the hand-note, who was to be liable for the alleged loan. This finding of the learned trial Judge was not interfered with and, in fact, was confirmed, in appeal. I am not satisfied that there is any such finding by the Courts below with which I should interfere at this stage.

(3.) THIS leads me to the consideration of an interesting point of law raised by Mr. Harihar Mo-hapatra (with him Mr. R. N. Misraj, the learned counsel appearing for the appellant, on the question from what date the interest would be payable to the plaintiff. The hand-note in question reads as follows: "rs. 3259/-On demand we proprietors and managers of Mohan Talkies of Khurda road, P. O. Jatni, promise to pay jointly and severally Mr. D. P. Thak-ker of Jatni or order the sum of Rupees three thousand two hundred fifty nine only for the value received in cash as taken loan for the cinema purpose. Sd. Bhimji Chauhan for Mohan Talkies 15-6-47 witness: sd. Madhab Satpathi. Sd. Karson Madhabji. 16-6-47. Please pay to bearer. Sd. D. P. Thakker. 15-10-49. " the document shows that there is no mention of any interest being payable on the loan. The trial Court has allowed interest at the rate of 6 per cent. per annum and future interest at 6 per cent. per annum. The learned counsel for the appellant contended that no interest is payable on the loan as the document on the strength of which the suit is filed is silent about interest. Mr. P. V. B. Rao, learned counsel appearing for the respondents, however, relied on Section 80 of the Negotiable instruments Act in support of his contention that even if no interest is specified in the instrument, interest on the amount due shall, in any event, be calculated at the rate of 6 per cent. per annum from the date of the execution of the document, namely, June 15, 1947.