FIRM RATANJI BHAGWANJI AND CO Vs. PREM SHANKER

JUDGEMENT

(1.) This is a second appeal by the defendant from the decision of the Sessions and Subordinate Judge of Cawnpore, dismissing an appeal against the decision of the Munsif of Oawnpore in a case for recovery of a certain sum of money. The plaintiff Prem Shanker sued to recover Rupees 1600 including interest from the defendant-appellant on the allegation that one Jata Shanker, the working partner of the defendant firm, had borrowed from the plaintiff a sum of Rs. 1000 on 19th January 1932, and another sum of Rs. 100 on 3 February 1932. The suit was filed on 11 November 1935, more than three years after these two loans were taken, but the plaintiff sought to save limitation by an acknowledgment in writing said to have been made by Jata Shanker on 30 November 1932. The defence in the case was that Jata Shanker had embezzled the money of the defendant firm and was removed from partnership in November 1932, and that Jata Shanker had no authority to borrow money on behalf of the defendant firm or to give an acknowledgment. It was also alleged that Jata Shanker is the uncle of the plaintiff and the alleged loans were fictitious.

(2.) The trial Court of the Munsif found that the two items of loan were taken by Jata Shanker, that he was the working partner of the defendant firm and that he had authority to borrow the money. As to the acknowledgment embodied in the document Ex. 1, dated 30 November 1932, the Munsif held that, although this document is a promissory note and not duly stamped as such, it is admissible in evidence for saving limitation, because it also contains an acknowledgment. He relied on the case reported in Ambalan V/s. Ambalan . In the result the claim was decreed for the principal sum of Rs. 1100 only on the ground that the portion of the promissory note relating to interest was not admissible in evidence. In appeal the lower Appellate Court upheld the decision of the learned Munsif and made the following observations in its judgment: The learned Munsif held that although the said document was not admissible in evidence as a pro-note, yet it could be relied upon as an acknowledgment. This view of the learned Munsif is challenged by the appellant. On behalf of the respondent it is urged that in view of Section 36, Stamp Act, this Court is precluded from questioning the admissibility of a document which has already been admitted by a Court. I have grave doubts about this latter argument of the respondent, but I find that there is a ruling of the Lahore High Court, Rupchand V/s. Baili Ram (1933) A.I.R 1933 in which the trial Court had admitted in evidence a document as acknowledgment which was not properly stamped as a pronote. On appeal the District Judge dismissed the claim on the ground of inadmissibility of the document but the Hon ble High Court held that when once a document was admitted by a Court, though wrongly, the Appellate Court was debarred under Section 36 of the Act from interfering in the matter. I think it is not permissible for me to enter into the question of admissibility of the document when once it has been admitted by the learned Munsif.

(3.) As to Jata Shanker's authority to borrow money and make an acknowledgment the lower Appellate Court observed that though Jata Shanker was made to leave the partnership on or about the time when the acknowledgment was executed, there was nothing definite to show that the acknowledgment was executed after he had been made to sever his connexion with the firm. In second appeal learned Counsel for the defendant-appellant has contended before me (1) that the document of 30 November was not admissible in evidence and could not be relied upon as an acknowledgment and (2) that the burden of proving that Jata Shanker had executed the document of acknowledgment after he had severed his connexion with the defendant firm was not on the defendant but on the plaintiff, and it was not proved that when Jata Shanker executed this document he was a partner of the defendant firm. The document of acknowledgment, dated 30 November 1932, is in these terms: I have taken from you Rs. 1000 on 19 January 1932, and Rs. 100 on 3 February 1932, total Rs. 1100. Whenever you ask for it I have to pay it together with interest.