JUDGMENT

Markby, J. - Gave a decree for the amount claimed.

⁽¹⁾ Before Mr. Justice Markby.

The 5th May 1868.

Bhairabnath Khettri v. Jumanram Dhandaria

This was a suit on a promissory note for Rs. 5,500 under the Bills of Exchange Act The defendant obtained leave to defend, and he put in a written statement admitting that he had signed the note, but alleging that he had been forced thereto by threats and violence, and that there was no consideration for the note.

The plaintiff in his written statement stated "that on 10th November 1867, the plaintiff had in his possession 9 taxi chittis (each chitti being for five chests or lots), 4 chittis at 1,405, and 5 at 1,350, for the 11th Government opium sale, and the defendant, having called at the plaintiff's house, as he was in the habit of doing, informed the plaintiff that tazi chittis were being sold at a large profit in the market, viz., at a profit of Rs. 1,000 on each chest for the 4 chittis at 1,405; and if he should entrust him for sale on the plaintiff's account with the said 9 chittis which the defendant knew were held by the plaintiff, he would realize a large profit on them; that the plaintiff thereupon delivered the said 9 chittis to the defendant and instructed the defendant to sell them on his behalf; that the defendant on the sale thereof was to receive his brokerage of Rs. 5 on each chitti.

"That on 4th November 1867, the plaintiff had contracted with the defendant to purchase from him 11 tazi chittis for Rs. 1,000, and had paid to the defendant Rs. 500 in cash in part payment of the said sum of Rs. 1,000 being the price of the 11 tazi chittis and on 10th November 1867, the plaintiff paid the balance Rs. 500; but the defendant failed to carry out his said contract by giving the plaintiff delivery of the said 11 tazi chittis." He stated that the note was given to him by the defendant in satisfaction of these claims.

Mr. Woodroffe and Mr. Jackson for the plaintiff.

Mr. Cowell and Mr. Goodeve for the defendant.

The following issues were fixed by the Court:--

1. Whether the defendant signed the note, being forced thereto by threats and violence.

2. Whether there was any consideration for signing the note.

3. Whether the consideration for the note being the balance of the proceeds of the sale of certain tazi chittis, entrusted by the plaintiff to the defendant for sale, the note was void under Act XXI of 1848.

The onus therefore was on the defendant. He completely failed to prove any case under the first and second issues, and his Counsel were obliged to abandon them.

As to the nature of the tazi chitti transactions, the following evidence was given by one Bhagwan Das, an opium broker:--

"If I have tazi for Rs. 1,400, and the opium is sold for more than Rs. 1,400, the profit is mine; if it is sold at Rs. 1,500, I should get Rs. 100; the man who purchased the chitti would pay me the Rs. 100. Each chitti covers 5 chests. The chitti is a hand receipt. When I buy a tazi chitti, no opium passes. When the auction-sale takes place, on that very day, on going to the writer of the chitti, the holder of it is entitled to a darkhast. Sometimes there are tazi chittis for more opium than there is opium for sale on a particular day.'

Cross examined.--"There are a certain number of persons who get tickets, and have a right to go into the Exchange to bid for opium. Other persons are not allowed to enter or to bid. They stop down-stairs, and get the news from upstairs of the price at which opium is sold. Shroffs issue the tazi and mandi chittis of their own motion. If a shroff issues a tazi chitti, it is transferable by endorsement. On the day of sale at any time before 12 at night, the tazi-man has a right to go to the shroff, and get a darkhast for the delivery of opium. If the shroff has not bought any opium, he will take from the bazar; he must bay the darkhast from some one who has bought opium. If he has not the opium, and cannot buy a darkhast, he will pay the difference in mon