JAIKISHAN Vs. BAJRANGLAL

JUDGEMENT

(1.) THIS is a civil second appeal in a money suit and arises under the following circumstances.

(2.) TWO suits were filed by the plaintiff respondent Bajranglal in the Court of Munsif, Didwana. In both the suits the allegation of the plaintiff was that the defendant borrowed Rs. 5,000/- from the plaintiff on 2-T-52 and executed a bond agreeing to pay the aforesaid amount with interest at the rate of 6% per annum in the following instalments: - 1. Rs. 1700/- with interest on Phagun Sud 15, Smt. 2008. 2. Rs. 1100/- with interest on Vaishak Sud 15, Smt. 2009. 3. Rs. 1100/- with interest on Asoj Sud 15, Smt. 2009. 4. Rs. 1100/- with interest on Posh Sud 15, Smt. 2009. The plaintiff filed a suit for the recovery of the first instalment on 29. 4. 51 (suit No. 160 of 1952 ). He also brought another suit for the recovery of :he second instalment on 31. 5. 52 (suit No. 190 of 1952 ). The defendant admitted the execution of the bond in both the suits, but denied having received any consideration. Issues were framed in both the suit. In suit No. 160 of 1952 aft application was made by the defendant that this suit may be consolidated with suit No. 190 of 1952 and on 23. 9. 52 the learned Munsif ordered that as the parties and the issues were the same in both the cases, civil suit No. 160 of 1952 is to be consolidated with civil suit No. 190 of 1952. Evidence was recorded in civil suit No. 190 of 1952 and the learned Munsif decided both the suits by a common judgment holding that the consideration for the bond was not paid by the plaintiff to the defendant. He, therefore, ordered the suits to be dismissed on 30. 10. 53. On that very day he recorded in the proceedings of suit No. 160 of 1952 that as the judgment has been pronounced in suit No. 190 of 1952, this suit is dismissed. In both the suits two decrees were prepared separately.

(3.) COMING to the merits of the case, the lower appellate court has held that the bond is a registered bond duly signed and executed by the defendant. The defendant is a man of wide business experience. It was for him to show that the registered bond executed by him was without consideration. The lower appellate court has held that the story given by him for the execution of the bond is false. His version is that it was a sham transaction only to benefit the plaintiff who was in need of exhibiting his solvency to his creditors who were forcing him to pay the money due to them and they would have felt satisfied if they came to know that the plaintiff holds a bond of Rs. 5,000/- in his favour from such a solvent man as the defendant. This story on the face of it is highly improbable and the evidence on record is found to be totally false. It was for the defendant to prove that the bond was without consideration and according to the judgment of the lower appellate court he has failed to do so and that finding is final in second appeal.