PARKASH SHARMA Vs. KRISHEN LAL

JUDGEMENT

(1.) IN this suit under Order 37 Rule 2 Civil Pr. Code, the plaintiffs case is that the defendant borrowed a sum of Rs. 9,000/ - from Messrs Shankar Finance Company, Samba, hereinafter the Company, and executed a promissory note in its favour on 25 -4 -1969 undertaking to pay the said sum with interest at the rate of 18 per cent per annum on demand or order. The company later on endorsed the said promissory note in favour of the plaintiff for consideration entitling him to recover the sum mentioned in it from the defendant. After giving credit to him for the payments made towards the aforesaid loan, a sum of Rs. 4,539.99 was still due from the defendant which he failed to pay in spite of repeated demands. Adding a sum of Rs. 406/ - the plaintiff has asked for a decree in the amount of Rs. 5,000/ - against the defendant with costs and interest both pendente lite as well as future at the rate of 18 per cent per annum.

(2.) THE suit has been resisted on the grounds that the promissory note is without consideration inasmuch as no loan of Rs. 9,000/ - was taken by the defendant from the company rather he had received a sum of Rs. 4,100/ - only from it and had foregone the balance, that the defendant had paid a total sum of Rs. 16,000/ - to Banarasi Dass Gupta, the sole proprietor of the company towards different groups and final account between him and the defendant was yet to be settled, that the said Banarasi Dass being the sole proprietor of the company by some one else was totally unauthorized, that the plaintiff was not entitled to claim any interest, that the document alleged to be a promissory note, is not a promissory note, as such the suit under Order 37 is not maintainable, and that in any case the suit pronote being insufficiently stamped the same was inadmissible in evidence. In the premises, it has been prayed that the suit may be dismissed with costs.

(3.) ON these findings, the following issues came to be framed on 9 -1 -1974 : 1. Whether the suit under Order 37 C. P. C. is not maintainable ? O. P. D. 2. Whether the pronote is insufficiently stamped and if so whether the deficiency cannot be made up ? O.P.D. 3. Whether the pronote was executed for consideration ? O. P. D.