MIRZA MURAD BEG Vs. WSHIPLEY

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for the recovery of money lent upon the basis of a promissory note.

(2.) The plaintiff in the year 1924 was a clerk in the Horticultural Gardens at Lucknow. The defendant was resident in Lucknow. On 17 October 1924 the plaintiff lent to the defendant a sum of Rs. 1,000. The defendant in respect of this loan executed in favour of the plaintiff a promissory note and a relative receipt acknowledging the receipt of the sum of Rs. 1,000 Under the terms of the promissory note the rate of interest payable by the defendant to the plaintiff in respect of the loan was 12 percent, per annum. So much is a matter of admission between the parties The plaintiff alleges that on 16 October 1927 be was transferred to Saharanpur and on 17 October 1927 the day before the period of limitation expired in respect of the loan of 1924, the loan was renewed, the defendant executing a fresh promissory note and a relative receipt in favour of the plaintiff. The amount for which the promissory note was executed the plaintiff alleges, was Rs. 1,000. The alleged receipt which has been produced by the plaintiff appears to be a receipt for Rs. 1,000. The plaintiff instituted the present suit on the basis of this receipt claiming Rupees 1,000 in the name of principal and Rs. 360 in the name of interest. It is noteworthy that in his plaint the plaintiff makes no reference to the fact that Rs. 400 of the original note had been, in fact, repaid by the defendant on 7 October 1927. It is a fact that on that date a sum of Rs. 400 was repaid by the defendant to the plaintiff. The plaintiff has endeavoured to explain, however, that Rs. 360 of these Rs. 400 amounted to what was due for the three years in respect of interest upon the original loan. If the plaintiff's averment be accepted as correct therefore upon 17 October the defendant was due to the plaintiff the sum of Rs. 960 and not Rs. 1,000, the sum for which the promissory note was alleged to have been executed. The plaintiff again explains bow-ever that when his wife negotiated the renewal of the promissory note with the defendant on 17 October she handed to the defendant Rs. 40. This brought the amount of the debt due on that date to the plaintiff up to the sum of Rs. 1,000. The defendant stated that he paid the sum of Rs. 400 to the plaintiff on 7 October 1927 and the balance of what was due in respect of the repayment of the loan and interest on 10 October 1927. In support of this averment apart from the oral testimony which was adduced in the Court of first instance, the defendant has produced what he alleges is the original promissory note and the relative receipt of 17 October 1924.

(3.) The defendant alleged that the receipt which was produced by the plaintiff and upon which he bases the present suit was, in fact, executed in 1924. He explains the matter thus : The promissory note and the relative receipt are written upon printed forms, the blanks being filled in by the person executing the promissory note and the receipt. On 17 October 1924 the defendant Mirza Murad Beg states that he made out on an ordinary form a promissory note and a receipt in respect of the loan of Rs. 1,000 by the plaintiff. When he had completed filling in the form of the promissory note however he found that he made a number of mistakes and in his own words the promissory note had become "suspicious" (Mashquq ho gaya tha). He therefore made out a new promissory note and a new receipt in favour of the plaintiff. The plaintiff however retained the "suspicious" promissory note and the receipt as well as the fresh ones which were made out by the defendant. The defendant further avers that on the repayment of the balance of the loan on 10th October 1927 the plaintiff handed to him the second promissory note and the relative receipt made out on 17 October 1924. But the defendant states that the plaintiff had retained in his possession the suspicious promissory note and relative receipt and that he inserted in that receipt the date 17 October 1927. This date having been inserted over the defendant's signature without his consent amounts to a forgery. The defendant contends therefore that the plaintiff's suit must be dismissed as it is based upon a forgery.