BURJORJI JIVANJI TODYWALLA Vs. HORMUSJI NOWROJI DAVAR

JUDGEMENT

(1.) This case originally came before me on April 2, 1931. It is a suit to recover a sum of money alleged to be due on a promissory note with interest at one per cent, per mensem. The plaint alleges that on May 10, 1929, the plaintiff lent and advanced to the defendants the sum of Rs. 2,50 but there is no cause of action whatever based upon the loan. As appears clear from the latter part of paragraph 1 and from paragraph 3, the only cause of action relied upon in this plaint is the cause of action upon the promissory note.

(2.) Two written statements were filed. In both of them the point is taken that the promissory note is improperly stamped, and as such is inadmissible in evidence. Apart from that, the written statement of defendant No. 1 alleges that no consideration passed for the promissory note, and that he was made by the plaintiff to put his signature to the promissory note, which had already been previously executed by defendant No. 2, who is the son of defendant No. 1 on the representation that in no event was defendant No. 1 to be held liable. So far as both written statements are concerned, it is alleged that the promissory note in suit was passed in respect of losses incurred by defendant No. 2 in playing at dice with the plaintiff at a certain club, that the consideration for the promissory note was a loss arising out of a wagering transaction, and that therefore the consideration is a void consideration and the promissory note is unenforceable.

(3.) On those pleadings, six issues were raised, there being no issue based upon any cause of action in respect of a loan, or on any defence to such cause of action, because no such cause of action had been raised in the plaint.