MAHANTH KESHO DAS Vs. HARI KISHUN DAS

JUDGEMENT

(1.) The respondents sued to recover Rs. 1125, alleged to have been lent to defendant 1 on 23 March 1930, and Rs. 200 as interest on the loan. Defendant 2 was impleaded as surety for repayment of the advance.

(2.) In the plaint the plaintiffs stated that on 23 March 1930, defendant 1 party borrowed the sum of Rs. 1125 and in token of the acknowledgment of the sum executed a handnote dated 23 March 1930, and promised to pay this sum "on demand with interest at one percent per on demand." The plaint further alleged that on the same date the defendant 2nd party agreed by a letter dated 23rd March 1930, to repay the amount if defendant 1 failed to do so. The plaintiffs accordingly in their plaint prayed for a decree for Rs. 1325 against defendants 1st party and 2nd party, "on the basis of the handnote and the letter" of suretyship. Defendant 1 did not deny that Rs. 1125 was due from him. His defence was that this money was due not to the plaintiffs but to defendant 2 on bahi khata account. The first Court disbelieved the defence and decreed the plaintiffs suit. An appeal by defendant 1 resulted in the suit being remanded to enable the plaintiffs to amend their plaint. The reason for this was that the document described as a handnote did not contain the name of the payee and the Court therefore held that the plaintiffs were not entitled to succeed on the basis of the handnote, but that in the circumstances they were entitled to an opportunity to amend their plaint and to seek to recover from the defendants on the basis of the loan. The case accordingly went back to the trial Court and the plaint was amended. The amendment consisted of a statement in the plaint "that the fact of the loan being advanced to the defendant was entered in the rokar bahi of the plaintiffs shop which was kept in the regular course of business" and in the paragraph in which the date of the cause of action is mentioned, in addition to the original statement "that the cause of action arose on the date of the execution of the handnote" there was an addition "that the cause of action arose when the loan was taken from the plaintiffs." The Court on remand again decreed the plaintiffs suit.

(3.) In appeal by defendant 1 to the District Judge the decree was attacked on four grounds. First, that the amendment of the plaint should not have been allowed, secondly, that as the claim to recover the original loan was barred by limitation at the date of the amendment the suit should have been dismissed on that ground, thirdly, that the plaintiffs story of the loan was improbable, and, lastly, that interest at the rate mentioned in the handnote should not have been granted. All these grounds failed to impress the learned District Judge who upheld the decision of the first Court.