Hari Kant Jha vs Nathu Choudhury and Another

Fazl Ali, J.—This is an application u/s 25, Small Cause Courts Act, impugning the judgment and decree of the Small Cause Court Judge of Darbhanga dismissing a suit brought by the petitioner for the recovery of a sum of Rs. 265 odd on the basis of a hand note said to have been executed on 12th Kartick 1334 Fasli by the opposite party in his favour.

The defence in the suit was that the hand note in question had been executed not in favour of the plaintiff, but in favour of his relation Ram Bahadur Jha and that it had been satisfied by the payment of a sum of Rs. 250 to Ram Bahadur Jha in Pagun 1346. The learned Small Cause. Court Judge after considering the evidence came to the conclusion that the defendants-had not taken any loan under the hand note in suit from the plaintiff, but they had taken a loan from Ram Bahadur Jha and the loan had been satisfied as alleged by the defendants. The learned Judge in discussing the evidence referred to certain minute discrepancies which, if they had stood alone, would not have been considered by me to be sufficient to warrant the dismissal of the plaintiff''s suit.

Again, the finding of the learned Small Cause Court Judge that the hand note in question had not been executed in favour of the plaintiff but that certain blank papers containing the signature and the thumb impression of the defendants had been made over to Ram Bahadur Jha was also not sufficient to dispose of the suit because, as was pointed out in Hridaysingh Vs. Kailash Singh and Others, , Section 20, Negotiable Instruments Act, gives general authority to a person to whom a stamped and signed paper is delivered to convert it into a negotiable instrument payable to any specified person and accordingly it is open to a person receiving a blank inchoate instrument to complete it in favour of any person besides himself. The principle underlying this decision is that the authority of a person to whom a stamped and'' signed paper is delivered to complete it in favour of another person cannot be challenged when the defendant himself chooses to send the instrument into the world in a form showing that the document is a hand note. But the matter does not rest there.

In the present case the defendants produced a receipt (Ex. A) which purported to have been granted by Ram Bahadur Jha to them, in satisfaction of a loan under a hand note. It is recited in this document that the sum had been received in full payment of the principal and interest on the basis of a hand" note bearing the same date as the hand note in suit.

It is further recited that as the hand note was missing Ram Bahadur Jha had to grant the receipt in order to protect the defendants. The learned Small Cause Court Judge has found as a fact that the receipt was granted in discharge of the hand note in suit which had been given to Ram Bahadur Jha in an incomplete form. This finding cannot in the state of the evidence on the record be said to be one which the Court was not entitled to arrive at.

In my opinion, this finding concludes the matter and I am unable in revision to hold that it is not correct. It may be stated that Mr. Choudhury placed great reliance on the following observations made by Agarwala J. in the decision to which reference has been made:

The defendant in the present suit also pleaded that he had made certain payments to Shamnandan Prasad Singh in respect of the amount for which he is now sued. In a suit by the payee of a hand note against the drawer the defence that payments have been made to some one who is not the payee cannot be taken into consideration. See Section 78, Negotiable Instruments Act.

In my opinion these observations do not apply to this case on the findings arrived at by the learned Small Cause Court Judge. In this case the view taken by the learned Judge seems to have been that the hand note never changed hands and that it always remained the hand note of Ram Bahadur Jha. A hand note is certainly a negotiable document, but if it is found as a fact that it was never negotiated that would alter the situation. The question as to whether at the time when the payment was made under Ex. A the hand note had already been completed in favour of the plaintiff is a question of fact and in the absence of any finding on the point I do not think that the decision to which reference has been made can be of any help to the plaintiff.

In these circumstances the application fails and is dismissed. In the circumstances of the case there will be no order as to costs.