HIRALAL Vs. RATANLAL

JUDGEMENT

(1.) THIS Civil Second Appeal by Hira Lal plaintiff arises out of the suit filed by him against Ratanlal, Jethmal and Himmatram defendants No. l, 2 & 3 respectively. The suit is for the recovery of Rs. 6,215/- and is based on a cheque (Ex. P/l) executed by Shri J. M. Rathor (Jeth Mal Rathor) Defendant No. 2 directing the Bank of Jaipur Ltd. to pay Rs. 6,000/- to the plaintiff out of the joint account of Defendants No. 1 & 2. It is the admitted case of the parties that this cheque was a post-dated cheque bearing the date 6th April, 1949, but was executed on 6th March, 1949. The case of the plaintiff is that Defendants Nos. 1 & 2 carried on business under the name and style of the Motor Exchange Company. , Jodhpur in which Himmat Ram Defendant No. 3 was the sub-partner of Ratanlal. The plaintiff had dealings with Himmat Ram Defendant who had from time to time borrowed Rs. 8,000/- for purchasing a house. Himmat Ram Defendant when pressed by the plaintiff to pay the said amount represented that he had invested the aforesaid amount in the aforesaid Firm and on 28th December, 1947, he executed a fruqqa' in favour of the plaintiff for Rs. 8,000/ -. When the plaintiff demanded this amount he took a false stand that out of this amount, Rs. 2,000/-had been paid to the plaintiff. Later on, Defendants Nos. 1 and 2 intervened and informed the plaintiff that Himmat Ram defendant had suffered loss in the business and that the plaintiff should reduce his claim by Rs. 2,000/- and also forbear to file the suit, and they would for Rs. 6,000/- to the plaintiff. On this, the plaintiff relinquished Rs. 2,000/-/- and agreed to accept Rs. 6,000/ -. In pursuance of the aforesaid agreement, Jeth Mal Rathor Defendant No. 2 on 6th March, 1949 handed over the cheque (Ex. P/l) for Rs. 6,000/- which the plaintiff accepted. The cheque was not honoured by the Jaipur Bank Ltd. The plaintiff filed a complaint under Sec. 420 IPC. in a criminal court and also filed the suit on 1lth November, 1949 for the recovery of Rs. 6,000/- principal and Rs. 215/- as interest, in all Rs. 6,215/ -.

(2.) RATANLAL defendant No. 1 denied the allegation made in the plaint. He also pleaded that he had not signed the cheque and was not liable. Alternatively he pleaded that even if it; be held that he carried on business in partnership with Jethmal, he was not liable as Jethmal has acted beyond his authority.

(3.) NOW there is a presumption under Sec. 118 of the Negotiable Instruments Act that every negotiable instrument was made for consideration, and it was for Jethmal to rebut this presumption. No doubt in rebutting this presumption, he is entitled to rely on the circumstances which appear from the evidence of the plaintiff himself. I may, however, point out that it is not necessary in law that the promisor himself should be benefited. Consideration has been defined in sec. 2 (d) of the Contract Act and the consideration for a promise may be doing or abstaining from doing something by the promisee at the desire of the promisor. In this case, the plaintiff has stated in the plaint that Defendants Nos. 1 and 2 had agreed to pay Rs. 6,000/-to the plaintiff if he relinquished Rs. 2,000/- from his claim of Rs. 8,000/- against Himmatram and also did not sue him. In pursuance of this agreement, it is alleged by the plaintiff, the cheque (Ex. P/l) was handed over to him on the 6th March, 1949. The plaintiff on cross-examination stated that it was not correct that there was no agreement between him and Ratanlal and Jethmal that if he would not file the suit against Himmat Ram and they would pay him Rs. 6,000/ -. The plaintiff stated on oath that what he had stated in the plaint was correct. Learned counsel for defendants Ratanlal and Jethmal have argued that the case of the plaintiff for the relinquishment of Rs. 2,000/- was not correct as according to the account (Ex. P. W. 5/1) the amount of Rs. 2,000/- had already been paid by Himmatram to the plaintiff even before he had executed the ruqqa- (Ex. P/2 ). Yet, it cannot be denied that Himmatram was liable to pay at least Rs. 6,000/- to the plaintiff. I have, therefore, to examine whether the plaintiff's case that he had agreed to forbear to sue Himmatram at the instance of Defendants Nos. 1 and 2 is correct or not.