MEHTA CHARAN DASS AND CO Vs. RAM PARSHAD

JUDGEMENT

(1.) By this judgment I will dispose of Regular Second Appeal No. 868 of 1980 and Cross-Objections filed by the plaintiff under Order 41 of Rule 22 of the Code of Civil Procedure in the above Regular Second Appeal, as the common question of law and fact, is involved in both the matters.

(2.) The brief facts of the case are that Shri Ram Parshad (deceased) sole proprietor of Firm known as Madho Prashad Ram Prashad, filed a money suit for a sum of Rs. 17,325.56 being the amount payable by the defendants M/s Mehta Charan Dass and Company on account of the pronote and receipt executed on 31.3.1973 and it was alleged by the plaintiff that he deals in paddy and carries on his business in the name of Firm Madho Prashad Ram Prashad and he is the sole proprietor of the said firm. The defendants had been purchasing paddy on credit from the plaintiff with a promise to pay its price with interest at the rate of 1% per month. On 31.3.1973, after going through the account bills and sales tax form etc, a sum of Rs. 20,594.85 as principal and interest, was due to the plaintiff from the defendant. On the request of the defendants, the plaintiff gave up Rs. 600.29 out of the balance amount of Rs. 19,994.56 and the defendants executed pronote and receipt for a sum of Rs. 13,452.56. The defendants also issued a postdated cheque for a sum of Rs. 6,542/-. The defendant agreed to pay interest on the promote amount at the old agreed rate. Thereafter, the defendants paid a sum of Rs. 1,000/-on 5.12.1973. However, the defendants did not pay the remaining amount of Rs. 13,452.56 as principal and Rs. 3,763.60 as interest in spite of the repeated demands. Hence the suit.

(3.) Notice of the suit was given to the defendant who took the objections that the suit is barred under Order 2 Rule 2 C.P.C.; that the promote has not been properly stamped; that the suit is barred by the principle of res judicata and that the suit is liable to be stayed under Section 10 of the Civil Procedure Code. On merits, it is alleged that no account was gone into by the plaintiff on 31.3.1973 and in fact, the accounts were gone through by the parties in July, 1973 at Ambala and that a sum of Rs. 13,452.56 including interest was found due to the plaintiff. At the instance of the plaintiff a pronote for a sum of Rs. 13,452.56 was executed by the defendants. The plaintiff was insisting for making some cash payment, A post-dated cheque dated 30.12.1973 for a sum of Rs. 6,542/- was issued for the payment of some interest and principal amount. Thereafter a sum of Rs. 1,000/- was paid and that as the plaintiff did not issue receipt for this amount of Rs. 1,000/- the payment of the aforesaid cheque was stopped.