RATANRAJ Vs. KRIPASHANKAR

JUDGEMENT

(1.) THIS is an appeal by the plaintiff against the order of the Senior Civil Judge, Jodhpur, dated the 31st of October, 1952, remanding the case to the trial court under Order XLI Rule 23 of the Civil Procedure Code.

(2.) THE facts giving rise to it are that the plaintiff brought a money suit for recovery of Rs. 700/-principal and Rs. 157/8 interest, in all Rs. 857/8, on the basis of an entry in his khata bahi dated Sawan Sud. 1 Svt. 2003. THE suit was originally filed against Shivraj and Kripashankar. Shivraj has died since then and his legal representatives have been brought on the record. It was averred by the plaintiff that Shivraj and Kripashankar had both jointly obtained a loan of Rs. 700/-from him, that they had orally agreed to pay interest at the rate of 6% per annum, that Rs. 56/-were received for interest thereafter and Rs. 857/- including interest remained outstanding to the date of the suit It was also stated that the entry in the plaintiff's khata bahi was signed by both the defendants. THE plaintiff prayed for a decree of the entire amount together with interest pendente lite and future interest. THE defendants traversed the claim and pleaded that the document on which the suit was founded was a mere acknowledgment and that it was inadmissible in evidence under sec. 35 of the Indian Stamp Act since it did not bear a proper stamp according to Scheduale 1, Art 1 of the said Act. THE trial court framed the following three issues - (1) Whether the khata sued upon is admissible in evidence even though unstamped. (2) Whether the defendants executed the document sued upon after obtaining a loan of Rs. 700/ -. (3) Whether the defendants agreed to pay interest at 3% per annum on the said amount.

(3.) LEARNED counsel for the respondents has relied upon the case of Bindesari Prasad vs. Ram Tapesha Singh (4 ). In that case, the defendant had borrowed Rs. 300/- from the plaintiff's father. It was said by the plaintiff that the loan was repaid on 21st of July, 1929, and Rs. 250/- were lent on the following day and the following note was made on the same document "signed by Ram Tanesha Singh Rs 253/- cash have been taken. Besides this nothing else is due from me. " It was held that it was an acknowledgment of a debt. In the first place, it may be mentioned that in the above case the matter had gone to the High Court in revision from a judgment of the Small Cause Court before a learned Single Judge. The Judge, Small Cause Court had interpreted these words to mean 'that there was an implied acknowledgment on the part of the defendant that the sum then taken viz: Rs. 550/- did remain due from the defendant. " The learned Judge in the High Court also agreed with the same inference and added that "the circumstances that the words were written on an old formal document and signed by the debtor and left in the possession of the creditor justify the further inference that the document was intended to supply evidence of the debt " It may be pointed out that in the above case, when it was urged by the plaintiff's learned counsel that there was an oral transaction and the document was only a receipt of the money, the learned Judge remarked that this could be allowed to be proved if the plaintiff had made his case clear in the trial court. But he did not consider it proper to interfere as it was a revision application in a small cause case. The present case is not a small cause case and in fact, the argument of the plaintiff's learned counsel is that there was an oral talk between the parties regarding the loan. It is stated in the plaint that there was even on oral contract about the interest when the money was advanced. According to the appellant's learned counsel the document sued upon was taken as a receipt of the money which was advanced to the defendants. The above case is therefore not helpful.