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Mansukhram and anr. Vs. Gyanchand Sumatchand and Two ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Regular First Appeal No. 138 and 176 of 1972
Judge
Reported in1974WLN(UC)283
AppellantMansukhram and anr.
RespondentGyanchand Sumatchand and Two ors.
Excerpt:
.....sukhi's hotel before the pronote was written and signed by the defendants. 5. in view of all the above circumstances, i am clearly of the opinion that no amount was paid in cash against the pronote ex......on 22-1-1966 as alleged in the plaint of civil original suit no. 9/66 (23/67)?2. whether the suit pronote was executed in lieu of all outstanding amount of rs. 8788.64 and a further sum of rs. 400 and as such these outstandings have merged in the suit pronote?3. relief.the learned additional district judge after evidence found that on 22.1.66 the plaintiff paid rs. 10,000 in cash to the defendants against the pronote ex. 1 and this transaction had nothing to do with the sale and purchase of 'laha he accordingly decreed suit no. 9 of 1996 (23 of 1967) for rs. 10, 580/- with costs and pendente lite interst at the rate 12%per annum and future interest at the rate of 6% per annum on the principal sum of rs. 10,000. however, suit no. 24/68 (13/68) was dismissed on the ground that.....
Judgment:

S.N. Modi, J.

1. These two appeal arise out of two suits which were consolidated and tried together. They were disposed of by the Additional District Judge, Alwar by a common judgment dated 25.5.1972. Suit No. 9/66(23/67) was instituted on 19.7.66 by Mansukh Ram against Firm Gyanchand Sumat Chand, a partnership firm carrying on bsiness at Kedalganj, Alwar, and its two partners Sumatchand and Tikamchand for recovery of Rs. 10,000/- as principal and Rs. 580/- by wav of int rest total Rs. 10,580/, on the basis of a promissory note dated 22-1-1966. It was alleged that Firm Gyanchand Sumat Chand borrowed a sum of rupees ten thousand from Mansukhram on 22-1-66 and in lieu thereof its partners Sumatcnand snd Tikamchand executed pronote Ex. 1 and receipt Ex. 2 and agreed to repay the amount with interest at the rate of 12 percent per annum. It was further alleged that when the amount was not repaid inspite of oral demand, a notice was issued on 28-3-1966 calling upon the defendants to make repayment. The defendants in reply admitted their liability to pay the amount.

2. Suit No. 24 of 1968 (13/1968) was instituted against the same defendants on 14-8-68 by Mansukhram and his brother Ghanshyam with the allegations that they carry on business at village Bnoda Meo in Tehsil Lax mangarh, under the name and style 'Mansukhram Ghanshyam, that on 17-8-65 they purchased through the agency of the defendants 'Laha', i.e., mustard' worth Rs. 15,258.44 P, including commits on charges, & other expanses, that they paid Rs. 10,000 towards the price of laha that defendants soid the 'laha' on 22-1-66 for Rs. 14,169/- and that the plaintiffs thus suffered a loss of Rs. 1089.44 P. in the transaction leaving the balance of Rs. 8910. 56 with the defendants. To this amount, the plaintiffs added Rs. 16950 as cost of gunny tags Rs. 2735.50 by way of interest and brought the suit for the recovery of Rs. 11816.56 P

3. The defendants resisted both the suits. They admitted execution of the pronote Ex. 1 and receipt Ex. 2 on 22-1-66 but added that they did so under the threat of criminal prosecution by the police. They denied that a sum of rupees ten thousand was paid to them in cash at the time of the execution of Ex. 1 and Ex. 2, They admitted receipt of rupees ten thousand from the plaintiffs on 17-8-65 against the parchase of 'laha'. They also admitted that 'Laha' was purchased and sold as alleged by the plaintiffs and that in the transaction the plaintiffs incrurred a loss. They produced relevant entries from their pucci roker and nakal behis as also the Khata of Mansukhram Ghanshyam and separate Khatas of Mansukhram and Ghanshyam to show that on 22-1-66 a sum of Rs. 9188.74 P. was due from them and the pronote Ex. 1 and receipt Ex. 2 were executed in lieu there of and further that Nocash amount of Rs. 10,000/- was paid to them by the plaintiff on 22-1-66. The defendants also pleaded that Mansukhram Ghanshyam was a partnership firm and since it was unregistered, suit no-24/68 (13/68) was not maintainable Under Section 69(2) of the Partnership Act. On the pleadings of the parties the following issues were framed after consolidation of two suits:

1. Did the defendant-firm take a loan of 10,000 in cash from the plaintiffs on 22-1-1966 as alleged in the plaint of civil original suit No. 9/66 (23/67)?

2. Whether the suit pronote was executed in lieu of all outstanding amount of Rs. 8788.64 and a further sum of Rs. 400 and as such these outstandings have merged in the suit pronote?

3. Relief.

The learned Additional District Judge after evidence found that on 22.1.66 the plaintiff paid Rs. 10,000 in cash to the defendants against the pronote Ex. 1 and this transaction had nothing to do with the sale and purchase of 'laha He accordingly decreed suit No. 9 of 1996 (23 of 1967) for Rs. 10, 580/- with costs and pendente lite interst at the rate 12%per annum and future interest at the rate of 6% per annum on the principal sum of Rs. 10,000. However, suit No. 24/68 (13/68) was dismissed on the ground that Mansukhram Ghanshyam constituted a partnership-firm and it being unregistered, the suit was not maintainable. Appeal No. 176/1972 has been preferred by the defendants against the decree passed in suit No. 9/66 (23/1967). Appeal No. 138/1972 has been preferred by the plaintiffs Mansukhram and Ghanshyam against the dismissal of their suit No. 24/1968 (13/1968). As both the appeals arise out of the same judgment, they are being disposed of together.

4. I have heard learned Counsel for the parties and gone through the entire evidence on the the record. The crucial point which calls for determination in both these appeals is whether Rs. 10,000 were paid in cash to the defendants on 22-1-1966 or whether the pronote Ex. 1 and receipt Ex. 2 were executed by the defendants in lieu of Rs. 9188.74 P. due to the plaintiffs on 22.1.66. The learned Additional District Judge has held that Rs. 10,000 were paid in cash to the defendants on 22.1.66. In this connection, he placed reliance on the statements of PW 1 Mansukhram. PW 2 Shantikumar and PW 3 Phool-chand as also on the recitals in Ex. 1 and Ex. 2 It may be mentioned here that the receipt Ex. 2 bears the attestation of PW 2 and PW 3. All these witnesses have deposed that a sum of Rs. 10,000 was paid in cash to the defendents in their presence on 22.1.66. The (sic) in Ex. 1 and Ex. 2 also show passing of cash consideration Ordinarily this evidence may be treated sufficient to prove that a sum of Rs. 10,000 was paid in cash to the defendants on 22.1.66 but, in the present case I am of the opinion that the testimony of PW 1, PW 2 and PW 3 is wholly untrustworthy and in fact Noconsideration passed on 22.1.66 at or before the execution of the pronote Ex. 1 and receipt Ex. 2. The grounds which persuaded me to take this view are as follows:

1. The plaintiffs admit that they carry on business for the last several years but it is significant to note that they did not produce their account books in support of their version that a sum of Rs. 10,000 was paid in cash to the defendants on 22.1.1966. On the contrary, the defendants have produced their regularly kept account books in the course of business and proved all relevant entries mentioned therein. So far as the regularity of account books produced by the defendants is concerned it is even admittted by PW 4 Ghanshyam that the defendants maintained regular account, books in the course of business. Similar is the statement of the plaintiff Mansukhram PW 1. The entries in pucci rokar Ex. A/18. Ex. A/26 and Ex. A/17 show that on 22.1.1966 the defendants, paid in cash Rs. 8788.74 to Mansukhram Ghanshyam in respecl of the balance which remained with them in the transaction of purchase and sale of 'laha', Rs. 400/- were paid in cash to Ghanshyam which was due to him in his account and Rs. 10,000 were received by the defendants in cash from Mansukhram against the pronote Ex. 1, Ex. A/17 further shows that the defendants debited Rs. 811.26 P. to the account of Mansukh Ram with a view to square up the aforesaid debit and credit entries made on 22-1-1966. All these entries lead to an irresistible conclusion that the pronote Ex. 1 was executed in liea of the balance due to the plaintiffs connection with the transaction of purchase and sale of 'laha'. No amount what so ever was paid in cash to the defendants against the pronote Ex. 1. The learned Counsel for the plaintiffs was not able to point out any irregularity or any such circumstance which may create any doubt as to the genuineness of the said entries. It may be pointed out that these entries are relevant Under Sections 5, 11 and 34 of the Evidence Act. See AIR 1963 Supreme Court, 1850.

2. Admittedly, the plaintiffs had paid Rs. 10,000 to the defendants on 17-8-1965 without any writing whatsoever, against the purchase of 'laha'. Again, it is admitted that on 22-1-1966 the financial condition of the defendant was not good. In these circumstances, if the plaintiff had in fact advanced a sum of Rs. 10,000/- on 22-1-66, they should have obtained a pronote for Rs. 20,000/- and not for Rs. 10,000/- only. The plaintiffs have assigned no reason whatsoever why they did not obtain any writing in respect of Rs. 10,000 advanced by them on 17-8-65 specially when 'laha' purchased through the defendants had not been delivered to the plaintiffs by that time.

3. It is an admitted fact that along with the pronote and the, receipt a separate agreement was also obtained from the defendants on 22-1-1966. It is significant to note that agreement has not been produced by the plaintiffs for the reasons best known to them. It can therefore safely be presumed that had that agreement been produced, it would have gone against them.

4. The plaintiffs are residents of village Baroda Meo and the defendants carry on business at Alwar. According to the plaintiffs, defendants Sumatchand and Tikamchand approached the plaintiffs at Baroda Meo on 22-1-1966 in order to borrow Rs. 10,000/- from the plaintiffs. Plaintiff Mansukhram should have ordinarily paid the amount of Rs. 10,000 at Baroda Meo but he did not do so. It is said that Mansukhram along with the defendants came to Alwar and the money was paid at the hotel of one Sukhi. The pronote and the receipt were written by one Onkar Prasad (DW 5) at the tehsil headquarters after the money had been paid to the defendants. PW 1 Mansukhram has stated that he did cot pay the amount of Rs. 10,000 to the defendants at Baroda Meo as printed form of pronote was not available at the village. The parties were literate and businessmen who could have written a pronote in their over hand-writing without the aid of printed pronote. To my mind, all this story is made up and has Nosemblance of truth in it.

5. The scribe of the pronote & the receipt, namely DW 6 Onkar Prasad has clearly deposed that Noamount was paid before him. If the money was to be paid on execution of the pronote, I fail to understand why it was paid at Sukhi's hotel before the pronote was written and signed by the defendants.

6. It is true that the attesting witnesses PW 2 Shantikumar and PW 3 Phoolchand have deposed payment of Rs. 10,000 in their presence but their evidence does not inspire any confidence. PW 2 Shantikumar is the resident of village Baroda Meo. He appears to have attested the document on account of his relations with the plaintiff PW 3 Phoolchand happens, to be present at Sukhi's hotel by chance and much reliance cannot be placed on his evidence.

7. The recitals in the promissory note Ex. 1 and receipt Ex. 2 to the effect that Rs. 10,000 were advanced in cash can easily be explained because the defendants too in their account books debited Rs. 8788 74 and Rs. 400 to the account of Mansukhram & Ghanshyam respectively showing that these amounts were paid in cash. It appears that because the defendants debited these amounts as cash receipts, they made the recital in Ex. 1 and Ex. 2 also that they had received Rs. 10,000 in cash.

5. In view of all the above circumstances, I am clearly of the opinion that no amount was paid in cash against the pronote Ex. 1 & receipt Ex. 2. The defendants executed the pronote Ex. 1 in lieu of the amount which remained payable by them to the plaintiffs in connection with the transaction of purchase and sale of 'laha'.

6. In view of the above findings, I need not go into the question whether suit No. 24 of 1968 (13/68) is barred Under Section 69(2) of the Partnership Act.

7. The learned District Judge has allowed interest pendente lite at the rate of 12 percent per annum and future interest from the date of the decree to the date of realisation at the rate of six percent per annum. In view of the fact that the plaintiffs did not come to the court with clean hands, I do not consider it equitable to award pendente lite interest at such a high rate. In my opinion, pendente lite interest at the rate of six percent per annum would meet the ends of justice.

8. In the result, appeal No. 138 of 1972 filed by Mansukhram and Ghanshyam is dismissed with costs, where as appeal No. 176 of 1972 preferred by the defendants firm Gyanchand Sumatchand and two others, is partly allowed and the decree in suit No. 9/1986 (23/1967) is reduced from Rs. 10580/- to Rs. 9718.74 P with interest from the date of the suit to the date of the decree and from the date of the decree to the date of realisation at the rate of six percent per annum on the principal sum of Rs. 9188.74 P. The parties are however left to bear their own costs throughout in appeal No. 176 of 1972.


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