Sah Radha Krishna vs Jamuna Prasad Singh and Others

Courtney-Terrell, C.J.—First appeal No 3 of 1933 is an appeal by the plaintiff from a judgment of the Subordinate Judge of Patna dismissing a suit based on two hundis dated Aghan Sudi 3, 1985 Sambat. Defendant No. 1 was the drawer of the hundis in question. He borrowed Rs. l0,000 from defendant No. 3. Defendant No. 1 drew the hundis on defendant No. 2, his father, who accepted the same in favour of defendant No. 3. Defendant No. 3 sold the hundis to the plaintiff endorsing the same to the plaintiff, and although the hundi itself contains no mention of interest, defendant No. 3 endorsed it with an undertaking to pay interest at the rate of 1 per cent. per month. The principal money of Rs. 10,000 has been paid by defendant No. 2 and the only point before us is the liability of defendant No. 3 to pay the stipulated rate of interest from the date of dishonour to the date of payment. The suit was dismissed as against defendants Nos. 1 and 3 on the ground that the hundi had not been dishonoured in fact but was decreed (according to the order) ex parte against defendant No. 2 alone for the principal amount and interest at 6 per cent. per annum from the date of maturity to realisation. As a matter of fact defendant No. 2 appeared and the decree ex parte against him was in any case incorrect. The hundi, however, having been paid, the liability of defendants Nos. 1 and 2 is not now in question. The learned Judge''s decision in favour of defendant No. 3 is, in my opinion, erroneous on the facts. The judgment was delivered on September 28, 1932, one week after the last witness had been examined, and I think that the learned Judge reading the depositions clearly made a mistake as to the nature of the evidence. He appears to be under the impression that defendants Nos. 1 and 2 were called upon to pay the interest for which defendant, No. 3 was alone liable, but this impression has resulted from a misreading of the evidence of Hari Narayan Prasad, the servant of the plaintiff, who stated as follows:

Baiju Babu (defendant No. 3) sold the hundis in suit to the plaintiff. Baiju Babu agreed to pay interest at 12 per cent. per annum. I enquired from Bhagwat Babu (defendant No. 2) and Jamuna Prasad (defendant No. 1) as to the rate of interest and they told me 12 per cent. per annum was the interest agreed to be paid.

The next paragraph of the Judge''s note of this witness''s evidence continues as follows:

I had once been to Jamuna Babu and Bhagwat Babu with the hundis. He did not pay any money. I then went to Baiju Babu. He also could not pay anything. Baiju Babu paid about Rs. 500 towards the interest on the hundis in suit. An account was taken and the interest due on the hundis were taken with the consent of Baiju Babu

The plaintiff in his evidence said:

After the expiry of the stipulated period I sent the hundis to Bhagwat Babu and Jamuna Prasad. They wanted time and did not pay anything. I then sent the hundis to Baiju Babu but he wanted time.

In cross-examination the plaintiff said: "I sent Hari Narayan to Jamuna Babu and Bhagwat Babu to demand interest." But this clearly refers to the interview which Hari Narayan spoke of in the paragraph of his evidence first quoted by me and does not refer to the subsequent presentation for payment. If the evidence is examined, it shows that there was a presentation for payment to defendants Nos. 1 and 2 which was refused. The plaintiff-appellant is clearly entitled to judgment for the amount of interest stipulated on the endorsement from the due date, that is to say, sixty days after the date Aghan Sudi 3, until the date of realisation of the principal from defendants Nos. 1 and 2 and thenceforward until realization of the interest from defendant No. 3 at the Court rate of 6 per cent. per annum. The appeal of the plaintiff is allowed with costs to be paid by defendant No. 3 here and in the Court below. In First Appeal No. 4 of 1933 the suit was based on a hundi of Saban Duja Sudi 9, Sambat 1985, admittedly drawn by defendant No. 2 as proprietor of the firm defendant No. 1, in favour of the plaintiff. Interest was claimed at the rate of 12 annas per cent. per month. The lower Court allowed interest at 10 annas and there can be no doubt on the evidence that the learned Subordinate Judge was right. There was a variance between the plaint and the evidence adduced by the plaintiff, who himself admitted that the money had been taken at 10 annas per cent. per month but claimed that the defendant subsequently agreed to pay interest at 12 annas. The claim was not made out by any reliable evidence. Another question referred to before us was the appropriation of certain sums admittedly paid by the defendants to the plaintiff. The plaintiff''s failure to credit these moneys was a point against him and the letter Ex. C. produced by the defendants, containing the signature of the plaintiff, supports the story of the defendants. Upon the evidence, therefore, the learned Subordinate Judge was clearly right in the appropriation of moneys that he has allowed for in the accounts. The only other question raised before us was that the plaintiff should be allowed costs and future interest. The learned Subordinate Judge, however, has given quite good and definite reasons for disallowing both. The plaintiff laid his claim without allowing for even admitted payments and sued on the admittedly wrong footing that the loan under the hundi had been taken with interest at 12 annas per cent. per month and there is clear evidence that the defendants were always ready to pay the amount due but that the plaintiff made unjustifiable demands upon them. The appeal is, therefore, without merit and must be dismissed with costs.

Dhavle, J.

I agree.