PALA RAM GUPTA Vs. HARISH CHANDER JAIN

JUDGEMENT

(1.) THIS appeal has been filed by the defendant against the judgment and decree of the Senior Subordinate Judge, Jullundur, dated October 31, 1963. The facts which have given rise to the present appeal are that the defendant incurred a loan of Rs. 5,700/ - from the plaintiff on October 8, 1959 and executed a promote in his favour. Thereafter he took another loan of Rs. 3,000/ - on November 24, 1959 and gave a post -dated cheque dated December 8, 1959 drawn on the Punjab National Bank Ltd. Jullundur Cantt. The plaintiff instituted the suit for recovery of Rs. 12,000/ - i.e. Rs. 8,700/ - on account of principal and Rs. 3,300/ - as interest at the rate of 12 per cent per annum up to October 6, 1962, the date of the institution of the suit. The suit has been contested by the defendant on various grounds. He inter alia pleaded that a material alteration had been made in the pronote and that the plaintiff was not entitled to the interest at the rate of 12 per cent per annum. The other pleas are not relevant for the decision of this appeal. The trial Court held that the pronote had not been materially altered as alleged by the defendant and that the plaintiff was entitled to interest at the rate of 12 per cent per annum. Consequently, it decreed the suit of the plaintiff for recovery of Rs. 12,000/ -. The defendant having felt aggrieved from the judgment and decree of the trial Court, has come up in appeal to this Court.

(2.) THE first contention of the learned counsel for the appellant is that the pronote had been altered by the plaintiff -respondent. He after referring to the pronote has submitted that it was originally executed in favour of Tara Chand son of Dhuli Ram Jain, resident of Jullundur and subsequently the name of Tara Chand was scored out and that of Harish Chander was substituted. He further submits that no signatures of Pala Ram were obtained on the aforesaid cutting. He has also referred to receipt Exhibit P -2 which was executed by the defendant -appellant on the same; day and in that receipt also the name of Harish Chander had been substituted for that of Tara Chand. I have heard the contentions of the learned counsel for the defendant -appellant but am unable to subscribe to that view. In the pronote as well as in the receipt, notes have been given by the scribe that the name of Tara Chand had been scored out and that of Harish Chander had been substituted. That writing in the pronote bears the signatures of Pala Ram Kartar Singh, P.W. 4, who was the partner of the defendant -appellant deposed that the said cutting was made at the time of the execution of the document in the presence of Pala Ram. A notice was given by the plaintiff -respondent to the defendant -appellant on April 4, 1961 in in which he asked the defendant to pay the amount in dispute. In reply dated April 26, 1961, Exhibit P -5, the defendant -appellant did not deny the execution of the pronote. If he had not executed the pronote in favour of the plaintiff -respondent, he would have straight away denied the execution thereof. The aforesaid circumstances clearly go to prove that the pronote and the receipt have not been altered as alleged by the appellant. The finding of the learned trial Court on this issue in my view is correct and I affirm the same.

(3.) I find that there is substance in the contention of the learned counsel for the appellant. In the plaint it has not been pleaded by the plaintiff -respondent that there was any oral agreement between the parties by which the appellant agreed to pay interest at the rate of 12 per cent per annum. The plea which has been taken by the plaintiff -respondent in the plaint regarding the agreement of the appellant to pay interest is as follows : - -