SAH RADHA KRISHNA Vs. JAMUNA PRASAD SINGH

JUDGEMENT

(1.) First Appeal No. 3 of 1933 is an appeal by the plaintiff from a judgment of the Subordinate Judge of Patna dismissing a suit based on two hundis dated Aghan Sudi 3, 1985 Sambat. Defendant 1 was the drawer of the hundis in question. He borrowed Rs. 10,000 from defendant 3. Defendant 1 drew the hundis on defendant 2, his father, who accepted the same in favour of defendant 3. Defendant 3 sold the hundis to the plaintiff endorsing the same to the plaintiff, and although the Hundi itself contains no mention of interest, defendant 3 endorsed it with an undertaking to pay interest at the rate of 1 per cent. per month. The principal money of Rs. 10,000 has been paid by defendant 2 and the only point before us is the liability of defendant 3 to pay the stipulated rate of interest from the date of dishonour to the date of payment. The suit was dismissed as against defendants 1 and 3 on the ground that the hundi had not been dishonoured in fact but was decreed (according to the order) ex parte against defendant 2 alone for the principal amount and interest at 6 per cent. per annum from the date of maturity to realisation. As a matter of fact defendant 2 appeared and the decree ex parte against him was in any case incorrect. The hundi, however, having been paid, the liability of defendants 1 and 2 is not now in question. The learned Judge's decision in favour of defendant 3 is, in my opinion, erroneous on the facts. The judgment was delivered on the 28 September 1932, one week after the last witness had been examined, and I think that the learned Judge reading the depositions clearly made a mistake as to the nature of the evidence. He appears to be under the impression that defendants 1 and 2 were called upon to pay the interest for which defendant 3 was alone liable, but this impression has resulted from a misreading of the evidence of Hari Narayan Prasad, the servant of the plaintiff, who stated as follows: Baiju Babu (defendant 3) sold the hundis in suit to the plaintiff. Baiju Babu agreed to pay interest at 12 per cent. per annum. I enquired from Bhagwat Babu (defendant 2) and Jamuna Prasad (defendant 1) as to the rate of interest and they told me 12 per cent. per annum was the interest agreed to be paid.

(2.) The next paragraph of the Judge's note of this witness's evidence continues as follows: I had once been to Jamuna Babu and Bhagwat Babu with the hundis. He did not pay any money. I then went to Baiju Babu. He also could not pay anything, Baiju Babu paid about Rs. 500 towards the interest on the hundis in suit. An account was taken and the interest due on the hundis were taken with the consent of Baiju Babu.

(3.) The plaintiff in his evidence said: After the expiry of the stipulated period I sent the hundis to Bhagwat Babu and Jamuna Prasad. They wanted time and did not pay anything. I then sent the hundis to Baiju Babu but he wanted time.