RAM PRASAD SINGH Vs. CHOUDHARY SAHU

JUDGEMENT

(1.) This appeal has been preferred by the defendant of Money Suit No. 1/13 of 1960/1961, which was decided against him by the learned first Additional Subordinate Judge of Bhagalpur. The money suit was brought for recovery of Rs. 11,656/ - as principal and Rs. 6.110/7/ - as interest claimed under a handnote alleged to have been executed by the defendant on 1 -8 -55.

(2.) The case of the plaintiff, in short, was that the defendant, as the Karta and the managing member of his joint family, borrowed a sum of Rs. 11,656/ - in cash from him and executed a handnote in proof thereof promising to pay back the amount of principal and interest at the rate of 1 per cent per month on demand. According to the plaintiff the amount was taken for family necessities, namely, purchase of bullocks, reconstruction of a portion of the house and payment of odd debts of other creditors. On 22 -2 -58 the defendant paid a sum of Rs. 75 and made the endorsement concerning the same per his own pen on the back of the handnote and also put his thumb mark on it. The plaintiff appropriated this amount towards interest due on the loan. The plaintiff, therefore, claimed that the principal and the balance of the interest, totalling Rs. 17.766/7/ - (i.e. 44 paise) was not paid by the defendant in spite of several demands and service of a notice which was sent to him on 29 -12 -59.

(3.) The suit was contested by the defendant who filed a written statement admitting the execution of the handnote, but contending, inter alia that no cash was paid to him on the alleged date of the executoin of the handnote. According to him, there was previous monetary transactions with the plaintiff beginning from 6th Magh 1357 Fs., when he first took a sum of Rs. 550/ - from him. Thereafter several small borrowings continued till the 2nd Chait, 1359 Fs. when a sum of Rs. 75 was borrowed for the last time. According to the defendant, a total sum of Rs. 8,766/ - had been borrowed from the plaintiff. He also went on paying some portions of his debts in several instalments between 10th Magh, 1357 Fs. and 2nd Baisakh, 1360 Fs. on 14th Savan, 1362 Fs. the defendant delivered castor seeds worth Rs. 379/7/6 to the plaintiff. In all he had paid a total sum of Rs. 2756/7/6. On 1 -8 -55 the defendant was called by the plaintiff and told that Rs. 11,656/11/ - annas came as the amount due with him after making a proper account and so far this amount a handnote should be executed. Under undue pressure and on the assurance that at the time of payment all the compound interest included in this amount would be remitted, the defendant had to execute the handnote in question. The plaintiff had assured him that he would charge only simple interest throughout. Concerning the payment of Rs. 75/ - which was appropriated by the plaintiff towards interest on 22 -6 -58, it was alleged that he had paid only Rs. 50 on 17th Jeth 1360 Fs. and ,a sum of Rs. 14 only was paid on 22 -6 -58. The plaintiff calculated interest on the sum of Rs. 50/ - which came to Rs. 11 and so he allowed a total sum of Rs. 75/ - to be deducted from the total interest as due on the hand -note on that date. According to him, the defendant endorsed a payment of Rs. 75 on the back of the handnote. The defendant further alleged that the plaintiff never demanded the return of money at any time and he never received any pleader's notice which is alleged to have been sent to him by the plaintiff's advocate. Rather, it was the defendant who was anxious to pay off the dues of the plaintiff after proper accounting and for this work he had approached the plaintiff several times to make a proper accounting after leaving the compound interest so that the defendant may clear the dues. The defendant, therefore, challenged the claim of the plaintiff and prayed that no decree for that amount could be passed against him.