MANSUKHRAM Vs. GYANCHAND SUMATCHAND

JUDGEMENT

(1.) THESE two appeal arise out of two suits which were consolidated and tried together. They were disposed of by the Additional District Judge, Alwar by a common judgment dated 25.5.1972. Suit No. 9/66(23/67) was instituted on 19.7.66 by Mansukh Ram against Firm Gyanchand Sumat Chand, a partnership firm carrying on bsiness at Kedalganj, Alwar, and its two partners Sumatchand and Tikamchand for recovery of Rs. 10,000/ - as principal and Rs. 580/ - by wav of int rest total Rs. 10,580/, on the basis of a promissory note dated 22 -1 -1966. It was alleged that Firm Gyanchand Sumat Chand borrowed a sum of rupees ten thousand from Mansukhram on 22 -1 -66 and in lieu thereof its partners Sumatcnand snd Tikamchand executed pronote Ex. 1 and receipt Ex. 2 and agreed to repay the amount with interest at the rate of 12 percent per annum. It was further alleged that when the amount was not repaid inspite of oral demand, a notice was issued on 28 -3 -1966 calling upon the defendants to make repayment. The defendants in reply admitted their liability to pay the amount.

(2.) SUIT No. 24 of 1968 (13/1968) was instituted against the same defendants on 14 -8 -68 by Mansukhram and his brother Ghanshyam with the allegations that they carry on business at village Bnoda Meo in Tehsil Lax mangarh, under the name and style 'Mansukhram Ghanshyam, that on 17 -8 -65 they purchased through the agency of the defendants 'Laha', i.e., mustard' worth Rs. 15,258.44 P, including commits on charges, and other expanses, that they paid Rs. 10,000 towards the price of laha that defendants soid the 'laha' on 22 -1 -66 for Rs. 14,169/ - and that the plaintiffs thus suffered a loss of Rs. 1089.44 P. in the transaction leaving the balance of Rs. 8910. 56 with the defendants. To this amount, the plaintiffs added Rs. 16950 as cost of gunny tags Rs. 2735.50 by way of interest and brought the suit for the recovery of Rs. 11816.56 P

(3.) I have heard learned Counsel for the parties and gone through the entire evidence on the the record. The crucial point which calls for determination in both these appeals is whether Rs. 10,000 were paid in cash to the defendants on 22 -1 -1966 or whether the pronote Ex. 1 and receipt Ex. 2 were executed by the defendants in lieu of Rs. 9188.74 P. due to the plaintiffs on 22.1.66. The learned Additional District Judge has held that Rs. 10,000 were paid in cash to the defendants on 22.1.66. In this connection, he placed reliance on the statements of PW 1 Mansukhram. PW 2 Shantikumar and PW 3 Phool -chand as also on the recitals in Ex. 1 and Ex. 2 It may be mentioned here that the receipt Ex. 2 bears the attestation of PW 2 and PW 3. All these witnesses have deposed that a sum of Rs. 10,000 was paid in cash to the defendents in their presence on 22.1.66. The (sic) in Ex. 1 and Ex. 2 also show passing of cash consideration Ordinarily this evidence may be treated sufficient to prove that a sum of Rs. 10,000 was paid in cash to the defendants on 22.1.66 but, in the present case I am of the opinion that the testimony of PW 1, PW 2 and PW 3 is wholly untrustworthy and in fact Noconsideration passed on 22.1.66 at or before the execution of the pronote Ex. 1 and receipt Ex. 2. The grounds which persuaded me to take this view are as follows: