SHIBCHARAN DAS Vs. (FIRM) GULABCHAND CHHOTEY LAL

JUDGEMENT

(1.) This is a plaintiff's appeal against a decree of the Subordinate Judge of Agra. The plaintiff-appellant claimed from the defendant-respondent a sum of Rs. 5,350 as principal and interest due under a promissory note dated Kunwar Badi 7th, Sambat 1984 which corresponds to 17 September 1927. It was the plaintiff's case that upon this day the defendant executed a note in favour of the plaintiff for the sum of Rs. 4,200 which sum was to carry interest at the rate of annas 12 per cent. per mensem, that is Rs. 9 per cent per annum. The defendant-respondent admitted that on the day in question he executed the promissory note sued upon, but he alleged that he had not received the whole of the consideration stated upon the face of the note. According to the defendant a sum of Rs. 3,750 only was paid by the plaintiff and that the balance, in spite of repeated promises, was never paid. The defendant further alleged that eight months after the promissory note was executed, the rate of interest was reduced from the agreed sum of annas 12 per cent per mensem to a sum of annas 10 per cent per mensem.

(2.) Upon proceedings having been brought for the sum of Rs. 5,350, alleged to be due from the defendant, the defendant admitted that a sum of Rs. 4,600 was due by way of principal and interest and such sum was offered to the plaintiff by cheque but was refused. Further the defendant had requested the plaintiff not to bring the present suit and in due course the defendant paid into Court a sum of Rs. 4,600 alleging that that sum was sufficient to satisfy the plaintiff's claim. This sum was never taken out of Court by the plaintiff and it appears that no notice was ever sent to the plaintiff that such a sum had been deposited in Court. In para. 7 of the defendant's written statement permission is asked to deposit the amount which, according to the defendant, was actually due. This sum, viz., Rs. 4,600 was deposited in Court on 27 November 1930, but there is no document which shows that the plaintiff ever received any notice of such deposit. It is clear from the terms of O. XXIV, Rule 2, that notice must be given to the plaintiff through the Court at the instance of the defendant where money is paid into Court, but in this case such does not appear to have been done. The plaintiff not having received notice of this deposit did not take out the money in satisfaction wholly or in part of his claim and it is clear that no blame attaches to him for not dealing with the money which had been paid in. He appears to have been wholly unaware of the payment until the case was heard and the decree passed on 23rd December 1930.

(3.) The learned Subordinate Judge held in the first place that the sum stated on the face of the promissory note, viz, Rs. 4,200 had not been in fact advanced and that the sum actually lent to the defendant amounted to Rs. 3,750 only. Upon the issue directed to the amount of the consideration which actually passed, he rightly held that the onus, of showing that the sum stated on the face of the note was not in fact lent, rested upon the defendant. He, however, held that the defendant had discharged the onus and established that he had received a sum of Rs. 3,750 and not Rs. 4,200 as stated on the face of the note. The appellant has urged before us in this appeal that we should come to a contrary conclusion upon the evidence. We have considered the evidence which was placed before the learned Subordinate Judge and have come to the conclusion that the defendant did discharge the onus which the law cast upon him and did establish that he received a sum of Rs. 450 less than that stated in the note. The evidence of the defendant himself coupled with the evidence of Johri Lal, his munim, abundantly proves this. The defendant's books were produced in Court and the learned Subordinate Judge was perfectly satisfied that they were genuine and had been entered up in the ordinary course of business when this transaction took place in 1927. If the books were genuine, then it is clear that only the sums shown in those books were actually received by the defendant.