O P VERMA Vs. LALA GEHRILAL

JUDGEMENT

(1.) THIS is a regular civil first appeal by the plaintiff O. P. Verma against the judgment of the learned District Judge Kotah dated the 9th February, 1954, dismissing the plaintiff's suit with costs.

(2.) THE material facts leading up to this appeal may be shortly stated as follows. There was a partnership business between the plaintiff's wife and the defendants (who are father and son) at Bikaner in December, 1941. The plaintiff was looking after this business, on behalf of his wife, which was carried on in the name of chand Bros. under which firm name the defendants were already carrying on business. Although the nature of this business is not disclosed in the plaint, there is evidence to show that the parties had taken a sub-contract from Messrs. Green bus Co. Delhi, in connection with the supply of lorries for training drivers for the second World War. This partnership is alleged to have continued until May 1942. The plaintiffs case was that in order to settle the accounts of this partnership business, an arbitrator named S. P. Singh, who is admittedly a brother of the plaintiff, was appointed by the parties on the 29th July, 1942. The arbitrator allegedly gave his award some time in the first week of February, 1943. This award turns out to be an oral one though the plaintiff under a mistaken notion stated in his replication that it was in writing. It is further alleged that, in accordance with the award of the arbitrator, the defendant Chandmal who was one of the proprietors of Messrs. Chand Bros. , gave the plaintiff a post-dated cheque no. D 70180 dated 24-2-1943 for Rs. 17500/- on the Palai Central Bank Ltd. . Delhi, in full settlement of the account of this partnership business. This cheque was presented by the plaintiff to the said bank on the 1st March, 1943, but it was dishonoured by the bank as they had no funds to the credit of the defendant chandmal in their bank. The plaintiff's case further was that thereafter he sent a notice to the defendants to pay the aforesaid amount as the cheque had been dishonoured by the bank. To this, a reply came from the defendants that the cheque in question had never in fact been passed in favour of the plaintiff and that the Bikaner account still remained unsettled, and, therefore, the defendants were under no liability to pay the amount asked for. Thereupon on the 26th April, 1943, the plaintiff O. P. Verma filed a suit for the recovery of Rs. 17500/-from the defendants in the court of the commercial Sub-Judge Delhi on the basis of the dishonoured cheque. This suit was brought under Order 37 of the Code of Civil Procedure. The defendants through their counsel Mr. Ranjit Singh put in an application for leave to defend the suit on the ground that the cheque was a forged one. It seems that it was the case of the plaintiff before the Sub-Judge that the plaintiff had given a receipt on the back of the counter-foil of the cheque in question in the defendants' cheque book. The case was, therefore, adjourned by the Sub-Judge to the 27th July, 1943, in order to enable the defendants to file the counter-foil of the dishonoured cheque. On the 27th July, 1943, the defendants did not put in appearance in the court of the Sub-Judge, and they appear to have sent a telegram to say that they were ill. The court naturally took no notice of the telegram. The defendants' counsel does not seem to have appeared at this hearing, or if he appeared, he probably said that he had no instructions. Thereupon the learned Judge dismissed the application for leave to defend and granted an ex parte decree for Rs. 17500/-in favour of the plaintiff with costs and future interest at 6 per cent. per annum from the date of the institution till the date of realisation. The case of the plaintiff further was that, after obtaining this decree, he was able to realise a sum of Rs. 20/- only from the defendants by execution in the Delhi court, and the balance of Rs. 17480/-together with costs and interest were still due to him. Thereafter, the plaintiff filed the present suit in the court of the District judge of the former State of Kotah where the defendants were living. This suit was filed on the 7th November, 1944, on the basis of the foreign judgment for the recovery of a sum of Rs. 17480/- as principal plus a sum of Rs. 1052/4/-as costs plus a sum of Rs. 1487/8/- as interest upto the 4th November, 1944, in all amounting to Rs. 20,019/12/ -. The plaintiff averred that the defendants had their immovable property in the State of Kotah and were also living and carrying on business there and consequently that court had the jurisdiction to entertain the suit. The plaintiff also claimed interest on the amount of the decree at the rate of eight annas per cent. per mensem.

(3.) THE plaintiff filed a replication on the 10th April, 1945, in which he clearly admitted that the partnership in question had taken place with his wife and not with himself, and that it had been mentioned by sheer mistake in paragraph one of the plaint that the partnership had taken place between him and the defendants. As already stated, the plaintiff also admitted that the cheque that he had received from the defendants was a post-dated one. As regards the award, it was averred that S. P. Singh was appointed an arbitrator on the 29th July, 1942, and that a reference to him was made by both Gehrilal and O. P. Verma vide Ex. P-3. It was further stated that as decided by the aforesaid arbitrator the defendants were to pay Rs. 17500/-by cheque to O. P. Verma on behalf of Mrs. Verma and that a cheque had been given by the defendants under the signature of chandmal on behalf of Messrs. Chand Bros. in pursuance of this award. It was also mentioned that the award was made in writing a1though this turns out to be incorrect, and the plaintiff's explanation is that he had somehow thought that the award had been made in writing. In fact, it had not been so made as it eventually turned out. The plaintiff also produced two letters Exs. P-2 and P-4 dated 16th june 1942 and 17th February, 1943, respectively (alleged to proceed from defendant Gehrilal) in support of his version. As regards the authority of Chandmal to give a cheque on behalf of Messrs. Chand bros. , the plaintiff's contention was that both Gehrilal and Chandmal, being father and son, were the owners of this business, and that Chandmal was the person who usually operated the accounts of the firm in the various banks. The plaintiff further emphatically denied the allegation made by the defendants that a blank cheque had been given to him and that he had later manipulated, it to foist a false liability on the defendants. The plaintiff also denied that the defendant Gehrilal had stayed with him during the month of June, 1942, as alleged by the latter, or that the former had ever pilfered the defendants' cheque book. As to the question of jurisdiction, the plaintiff's case was that the court at Delhi had jurisdiction, and that in any case the defendants had submitted to the jurisdiction of that court. It was further contended that the judgment of that court was given on merits and was, therefore, binding on the defendants.