RAMANI MOHAN BHATTACHARJEE Vs. SURJYA KUMAR DHAR

JUDGEMENT

(1.) These two appeals are by the plaintiffs in two suits based on two pronotes. Second Appeal No. 497 of 1939 arises out of Suit No. 93 of 1936, which is based on the pronote for Rs. 2400 executed by defendant 1 on 7 November 1933 in favour of the plaintiff in that suit, Ramani Mohan Bhattacharyya. The other appeal, namely, second Appeal No. 498 of 1939, arises out of suit No. 94 of 1936 based on another pronote for Rs. 2000 executed by the same defendant 1 Surjya Kumar Dhar in favour of the plaintiff in this suit, Ramesh Chandra Bhattacharyya. The plaintiffs case as made in the plaint in each of these suits is that defendant 1 Surjya Kumar Dhar borrowed the amount named in the pronotes from the pro forma defendant 2 Lokenath Sarma and executed the pronotes on 7 November 1933 in favour of the plaintiff in each suit. As the defendant did not make any payment in spite of repeated demands the suits were instituted for the realization of the amounts due on these pronotes.

(2.) Defendant 1 admitted the execution of the pronotes; but his case in each suit is that he did not take any loan on the basis of the two hand-notes in suits from the plaintiffs or from the pro forma defendant. He further stated in his written statement that defendant 2 no doubt paid to him the sum of Rs. 4400 in several instalments during the period from 25 May 1925 to 1 September 1925; but these payments were pursuant to an agreement to purchase from the defendant his interest in certain mortgage. His case on this point is that one Kali Kishore Pal Choudhury borrowed money from defendant 1 and his brothers and uncles by executing a mortgage bond in their favour for Rs. 25,000; that in this mortgage defendant 1 and his two brothers had one-third share and their uncles Basanta and Labanya had two-third shares; that defendant 2 purchased the two-third share of the uncles of defendant 1 in the mortgage; that thereafter in 1925 there was an agreement between defendant 2 and defendant 1 and his brothers, whereby defendant 2 agreed to purchase their one-third share in the mortgage for Rs. 10,000; that the terms of this agreement were that defendant 2 will gradually pay the entire price by the month of Kartick, 1332 B.S. and that if he fails to complete the purchase by that date, he will forfeit whatever amount he would in the meantime pay towards the price; that pursuant to this agreement defendant 2 paid Rs. 4400 as stated above, but failed to make any further payment within this stipulated period. He, therefore, forfeited this amount under the terms of that agreement. His case then is that thereafter in August 1933, there was some trouble between himself and defendant 2, as a result of which defendant 2 started a criminal case against him on 8 August 1933. During the pendency of this criminal case, defendant 1, in fear of criminal prosecution ultimately was coerced into agreeing to execute the pronotes in question for the above sum of Rs. 4400 and on his executing the pronotes on 7 November 1933, the said criminal case was dropped and he was acquitted on 8th November 1933.

(3.) At the hearing, the plaintiffs made the case that defendant 1 took a temporary loan of Rs. 4400 from defendant 2 agreeing to repay the same within 15 days in August 1933; that having failed to repay the amount within the promised period, he ultimately executed the pronotes for that loan on 7 November 1933. The Court of first instance decreed both the suits finding that the plaintiffs succeeded in proving the consideration, as alleged by them at the hearing, and that the pronotes were not procured by any coercion or undue influence. On appeal by defendant 1, the Court of appeal below found that the story of loan taken from defendant 2 by defendant 1 in the mon August, 1933, was not established; but that the pronotes were not without consideration. The real consideration for these pronotes was the sum of Rs. 4400 paid by defendant 2 to defendant 1, as alleged by the defendant in his written statement. He disbelieved the case of coercion and undue influence and further did not accept the case of forfeiture of that amount made by defendant 1 in his written statement. Regarding the case of forfeiture made by defendant 1 in his written statement the learned Judge observed: Had the matter come before the Courts in that form, the question of forfeiture should probably have been decided unfavourably to the defendant, Krishna Chandra Rudrapal V/s. Khan Mamud Bepari ( 36) 23 A.I.R. 196 Cal. 51 it was open to defendant 2 to bring a suit for specific performance. Had the pleadings of the plaintiffs been to that effect, it might well have been contended that forfeiture, if it ever was fact, had been waived by the execution of the hand notes and that is what in effect I find to have happened....