BALKISANDAS Vs. RAMBAKAS LAXMANDAS SHOP

JUDGEMENT

(1.) JACKSON , A.J.C. 1. This appeal arises from a suit on a promissory note. In the plaint it was alleged that the consideration of Rs. 3,503 was paid in cash and the plaintiff Rambakas, who was examined on commission, has deposed that the payment was made iu cash through a broker Kesrimal (D.W. 1). Kesrimal deposed that he paid Rs. 1,000 only to the defendant on behalf of Rambakas, thus supporting the defendant's plea that only Rs. 1,000 had been paid and that the balance of Rs. 2,500, though Rambakas had promised to pay it in a few days, was never paid. The trial Court decreed the plaintiffs' claim for Rs. 1,000 only with interest.

(2.) ON appeal to the District Judge, the trial Court's decision was held to be correct, bat the plaintiffs were permitted to amend their pleadings and the suit was remanded for a fresh decision. It was objected before me, though the, objection was not pressed, that the District Judge had no jurisdiction to allow the amendment. As the amendment was allowed in an order of remand, which has not been appealed against, it cannot now be questioned.

(3.) THE question is whether I am entitled to interfere in second appeal with the lower appellate Court's finding of fact. It is urged on behalf of the defendant that once it is accepted that payment was not made in cash as stated in the promissory note, the burden of proof lay on the plaintiffs to prove how it was paid and this has not been done. Reference has been made to Madho Ram v. Nandulal [1920] 1 Lah. 429 but I find nothing in that ruling be help the defendant. Certain, other decisions relating to bonds have been cited of which the most important is Laxmi Chand v. Haidar Skah [1900] 4 C.W.N. 82 a decision by the Privy Council; bat they seem to me to have no application when a promissory note is in question. Under Section 118, Negotiable Instruments Act, there is a statutory presumption that every negotiable instrument was made or down for consideration. This throws the burden of proving failure of consideration upon the defendant; and I do not think that the burden is shifted by the mere fact that part of the consideration is shown not to have been paid in ash as represented in the promissory note. It is by no means uncommon for a book transaction to be represented in documents and account books as a cash transaction; and when Rambakas in his plaint and in his deposition represented all the transactions to have been in cash, it does not necessarily follow that consideration failed to the extent that this representation is found to be (sic).