NIZAMUDDIN Vs. JUGAL KISHORE

JUDGEMENT

(1.) This second appeal has been preferred to this court by the above-named defendant-appellant against the judgment and decree dated 29-10-93 passed by Additional District Judge No. 2, Baran in Civil Regular Appeal No. 10 / 93 whereby the judgment and decree dated 16-8-93 passed by Munsiff and Judl. Magistrate, Baran in Civil Suit No. 140 / 93 has been upheld.

(2.) The facts giving rise to the filing of this appeal, briefly stated, are that the plaintiff-respondent had filed a suit under O. 37, C.P.C. against the defendant-appellant for recovery of Rs. 11,200 /- in the Court of District Judge, Baran. In the said suit a sum of Rs. 10,000 /- has been claimed towards principal amount and Rs.1200 /- on account of interest. The said suit was transferred to the Court of Addl. District Judge No. 2, Baran who thereafter again transferred the same to the Court of Munsiff and Judicial Magistrate, Baran for disposal in accordance with law.

(3.) In the plaint presented before the trial court the plaintiff-respondent alleged that the defendant had taken Rs. 10,000 / - in cash for which he had executed a 'Shahjog Darshani Hundi' on Miti Baisakh Budi 2 samvat 2048 wherein it was alleged that after affixing the revenue stamp the signatures had been put thereon and the same was handed over to the plaintiff. It was further alleged in the plaint that the defendant-appellant when contacted by the plaintiff-respondent, had refused to acknowledge the same and he did not pay the amount due to the plaintiff on account of hundi and even thereafter the amount of hundi had not been paid and as a result thereof the plaintiff was constrained to file a suit against the defendant for the recovery of Rs. 11,200/- with interest @ 2% per month. After the registration of the suit the defendant-appellant was duly noticed by the trial Court. On 2-11-1991 an application for leave to defend was filed on behalf of the appellant which was allowed by the trial Court on 4-1-1992. Subsequently written statement was filed on behalf of the appellant in which he denied the averments made in the plaint by the respondent in totality and by way of additional pleas contended inter-alia that the defendant was in need of Rs. 1,00,000/- in lieu of which the defendant had agreed to mortgage his three shops situated in 'Gadi Adda Baran'. In this regard the defendant had contacted the agent, Kasim Dalal who in turn intimated that the plaintiff-respondent was ready to advance a sum of Rs. 1,00,000/- in lieu of mortgage of three shops in his favour. The transaction of mortgage was settled through Kasim Dalal who told the plaintiff that stamp papers were required to be purchased for execution of mortgage deed which was to be typed thereon and for which expenses were to be incurred and for this purpose a hundi of Rs. 10,000/- was executed and both parties affixed their signatures in token of acknowledgement. But neither the stamps were affixed nor the date was mentioned on the hundi.