RADHA KISHEN Vs. MASTER SITAL PRASAD

JUDGEMENT

(1.) This second civil appeal arises out of a suit brought by the plaintiff respondent on the basis of two hundis, both executed on the 6 July 1920, one for Rs. 400 and one for Rs. 200. The defendant-appellant pleaded in defence that the hundis were without consideration and were executed in order to induce the plaintiff to stifle a prosecution pending \against him for embezzlement. This defence was accepted by the Court of first instance. On appeal the District Judge of Muttra, remanded the case to determine whether at the date of the execution of the hundis there was any liability on the part of the defendant to pay the sum secured by the hundis to the plaintiff, and secondly whether the hundis were executed to induce the plaintiff to abstain from prosecution of the embezzlement case. The first Court found both these issues in favour of the defendant but the Additional Subordinate Judge has decided that there was existing a liability on the part of the defendant which served as consideration for the hundis, and that this being the case the fact, that the execution of the hundis operated to induce the plaintiff to stop the prosecution for embezzlement, was immaterial.

(2.) The facts of the case appear to be as follows. The defendant was occupying a building belonging to the plaintiff as a press and type-foundry. He became indebted to the plaintiff to the amount of Rs. 1,164 and in order to liquidate this debt he agreed to make over the machinery and fittings to the plaintiff for the nominal sum of Rs. 1,164.

(3.) He was, however, to continue to occupy the building and in addition to the rent due for such occupation, he was to pay a further sum for use of the machinery.