PANCHOOLAL Vs. TARA CHAND

JUDGEMENT

(1.) THIS is a Civil Second Appeal for recovery of Rs. 1,540/- on behalf of the defendant Panchoolal. The plaintiff-respondents alleged in the plaint that the defendant had executed the agreement (Ex. 1) in their favour on 15th Jan. , 1958 undertaking his liability to pay to the plaintiffs a sum of Rs. 3,000/-out of which he agreed to mortgage the shop described in the plaint for Rs. 1,500/- and pay the balance in instalments as mentioned in Ex. 1. The plaintiffs stated that the defendant failed to get the mortgage deed executed. Hence they were entitled to recover Rs. 1500/- and also damages amounting to Rs. 40/ -. Thus, they filed the suit for the recovery of Rs. 1,540/ -. They also mentioned in the plaint that the suit for the recovery of instalments would be filed as and when the instalments fell due. The defendant denied the execution of the document and pleaded that it was forged and without consideration. The trial court dismissed the suit, but the lower appellate court decreed the suit holding that Ex. 1 was executed by the defendant and that it was with consideration. Hence this Second Appeal by the defendant.

(2.) FOR a proper appreciation raised by the learned counsel for the defendant appellant, it is necessary to mention the circumstances under which Ex. 1 was executed. According to the statement of the plaintiff Tarachand, the defendant was his commission agent. He was deputed by the plaintiffs to purchase 64 bags of 'til' seeds at Kotah. He purchased the same from Firm Lakshmi Chand Devilal and took them to Jaipur as instructed by the plaintiffs and delivered them to Messrs. Jamnalal Ramchandra, Ramganj Bazaar, Jaipur and secured from them an amount of Rs. 3,000/- in the account of the plaintiffs on 13th January, 1958. According to the plaintiffs, the defendant failed to pay the amount of Rs. 3,000/- so required to them and executed the agreement (Ex. 1) on 15th January, 1958. It may further be mentioned that Ex. 1 had been executed by the defendant in favour of Messrs. Ram Swaroop Tarachand, the Firm of the plaintiffs situate at Deoli. It is also mentioned in Ex. 1 that the defendant had secured Rs, 3,000/- from messrs. Jamnalal Ramchandra and came to Deoli, but when he was on the main road near the petrol pump, a thief robbed him of the money. Learned counsel for the defendant-appellant has contended that if the defendant had been robbed of Rs. 3,000/-, he incurred no liability for that amount to the plaintiffs as it cannot be said that he was negligent in the performance of his duty as an agent, or he did not conduct himself with much skill as was required of him in the circumstances of the case, nor did he misconduct himself. It is contended that in these circumstances Ex. 1 was without consideration. Learned counsel for the plaintiff-respondents has urged that the defendant had not said a word in his written statement that he had been robbed of the amount of Rs. 3,000/- for no fault of his, and as such, he was not liable. • Learned counsel has urged that in these circumstances it is not open to the defendant to make a case on these lines in the second appeal. To this, the reply of the learned counsel for the defendant-appellant is that the plaintiffs have themselves relied on Ex. 1, and they are bound by what is contained in Ex. 1, as such, it must be held as part of their case that the defendant had been robbed and it was not necessary for the defendant to make out a specific case that he was so robbed. In my opinion, it was for the defendant to have stated the facts in the written statement which exonerated him from his liability to pay Rs. 3,000/- which has been proved to have been received by him for the plaintiffs. Learned counsel for the defendant appellant has contended that this fact must be taken to be proved that the defendant had been robbed by a thief of the amount of Rs. 3,000/- as it is so mentioned in Ex. 1 and the plaintiffs are bound by the contents of Ex. 1 as it is written in their favour and they have based their suit on that document. FOR this proposition, he has relied on the following in Baburam vs. Inam Ullah (1) - "in India agreements between two contracting parties are evidenced by the execution of a single document by one of the parties alone and yet if the contract has been agreed upon the parties are bound by the rights conferred and the liabilities imposed by the document. " The aforesaid observations are no doubt applicable to a case in which a contract has come into existence by one party executing a document in favour of the other and the other party accepting the terms and conditions contained in the document by implication. But this case only points out that parties are bound by the rights conferred and the liabilities imposed by the document and does not say that the parties are bound by the entire contents of the document. As the contract has come into existence, the rights and liabilities are governed by the document, but for incurring certain liabilities, if a party has mentioned certain other facts, the other party cannot be held to be bound by that narration. Such facts are admissions of the executant of the document but not of the other party who has not signed it. The other party has only accepted as binding on himself the rights and liabilities conferred or imposed under the terms of the document and not all the contents thereof. In my view, the aforesaid case is thus distinguishable.