SEW BARAN SAW Vs. RAM CHARITRA DUBEY

JUDGEMENT

(1.) The plaintiff sued for a sum of money against defendant 1 and 2 or, in the alternative, against defendant 3. His allegation shortly stated, was that defendants 1 and 2 advanced, Rs. 4,000 to defendant 3 on a promissory note. Defendants 1 and 2 at the same time wore negotiating for a usufructuary lease to be granted by defendant 3 of certain properties in favour of the plaintiff. Sometime after the money was advanced, defendants 1 and 2 along with defendant 3 came to the plaintiff's house at Asansol and defendants 1 and 2 took a loan of Rs. 4,000 from him with an agreement to pay interest at the rate of Re. 1-4 annas per cent per month and defendant 3 stood surety for the payment of the money. When the plaintiff asked for repayment of the loan from defendants 1 and 2, they made over the promissory note which defendant 3 gave to them with an endorsement that the money should be paid to the plaintiff. The plaintiff attempted to realize the money from defendant 3 but the latter did not pay and hence this suit.

(2.) The learned Subordinate Judge has disbelieved the story of the plaintiff of his advanoing any loan to defendants 1 and 2 at Asansol for which defendant 3 stood surety. The story as to defendant 3 standing surety is absurd on the face of it. Defendant 3 by all accounts was heavily involved in debts; while defendants 1 and 2 are prosperous contractors, and the Subordinate Judge has found that they are very substantial people. The plaintiff produced an account book which the Subordinate Judge has not believed and we cannot also place reliance on it for a single moment. It is a small book in which, it is said, accounts of several years are entered; no balance is struck and the plaintiff himself admits that it does not show that he had any cash in his hand on the date when he is alleged to have advanced the loan to defendants 1 and 2. On failure of the plaintiff to prove his case against defendants 1 and 2, his suit was bound to fail and as his learned advocate has not been able to satisfy us that the Subordinate Judge is wrong in disbelieving the story of the plaintiff having advanced any money to defendant 1 and 2 as loan, this appeal must fail as against those defendants.

(3.) With regard to the liability of defendant 3, the Subordinate Judge holds that the money was really advanced to defendant 3 by the plaintiff outside the jurisdiction of his Court. But at the plaintiff's request the promissory note was executed in favour of the defendants, or rather in favour of defendant 2, who is a brother of defendant 1 and is joint with him. The Subordinate Judge finds that when the negotiations about the usufructuary lease to be granted by defendant 3 to the plaintiff failed, defendant 1 as ammukhtear of defendant 2 made the endorsement on the promissory note for sine money advanced by the plaintiff to defendant 3 and made it over to the plaintiff. Defendant 3, however, says that the plaintiff, has got no right to sue. On this statement the plaintiffs advocate here contends that defendants 1 and 2 were not his agents but really the agents of defendant 3 and as they received the money from the plaintiff which they paid over to defendant 3, they were personally liable for the money. It seems to be arguing in a circle. Defendants 1 and 2 never said that they advanced any loan to defendant 3 nor did they say that they had incurred any liability to the plaintiff for merely handing over the money as a conduit pipe to defendant 3, and it is impossible to see why defendants 1 and 2 should be made liable. Much stress was laid on the fact that there was an assignment by defendants 1 and 2 of the promissory note of defendant 3 in favour of the plaintiff and it was argued that upon that assignment defendants 1 and 2 made themselves personally liable to the plaintiff. As defendants 1 and 2 never professed to have any right to the promissory note on their own account as they never claimed to have advanced any money to defendant 3, the assignment was simply a declaration that instead of defendants 1 and 2 being the owners of the promissory note, it was the plaintiff who was the real person interested in recovering the money. Therefore, it can hardly be argued that by simply doing what was the right thing to do under the circumstances found by the Subordinate Judge in this case the defendants would be personally liable to the plaintiff.