AHMED SAHEB BAPU SAHEB KAFRE Vs. UBHAIYA HARSI

JUDGEMENT

(1.) This is an appeal from the judgment of Mr. Justice Marten in a suit filed by the plaintiffs on a promissory note dated May 20, 1920, whereby the defendant promised to pay them on demand Rs. 2000 and interest thereon at the rate of one and a half per cent, per mensem. The consideration stated in the note is Rs. 2000 borrowed in cash. The defendant admitted the note but denied receipt of any consideration from the plaintiffs for the promissory note. He further pleaded that the promissory note was passed in the following circumstances: This defendant mortgaged his land known as Bagicha at Koli Kalyan to the plaintiffs by an indenture of mortgage dated May 17, 1920. The said land was formerly mortgaged by this defendant to Hakma Mota & Co. and subsequently redeemed by this defendant on payment of the mortgage moneys but through oversight the reconveyance was not taken from the then mortgagees In order to indemnify the plaintiffs against the claims of the said Hakma Mota & Co., this defendant executed the said promissory note dated May 20, 1922, at the plaintiffs request, pending the execution of the re-conveyance by the said Hakma Mota & Co., but no consideration was paid actually to this defendant by the plaintiffs. Id was further arranged between the plaintiffs and the defendant when the promissory note was executed that the said promissory note should be returned to the defendant duly cancelled after the execution of the reconveyance by the said Hakma Mota & Co., in favour of the defendant. As the reconveyance has not yet been obtained the said promissory note could not be cancelled.

(2.) He also pleaded that the Court had no jurisdiction as the promissory note was passed at Kurla.

(3.) On these pleadings the following issues were raised: (1) Whether the promissory note was executed in Bombay as alleged in plaint and whether the Court has jurisdiction ? (2) Whether there was any consideration ? (3) Whether the promissory note was given by way of indemnity for a contingent liability which has now determined ? (4) Whether the promissory note was passed under the circumstances mentioned in para 2 of the written statement, and, if so, whether any cause of action has arisen on it ?