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High Court Of Madhya Pradesh
K. L. Pandey and A. P. Sen, JJ.
INDERMAL TAKAJI MAHAJAN - Appellant
Versus
RAMPRASAD GOPILAL - Respondents
First Appeal 150 Of 1967
Decided On : 01/20/1969
Where a suit is tried at a wrong place in a Court having no territorial jurisdiction, the decree is not assailable unless prejudice was caused to the defendant.
(Para 6)
(2) Negotiable Instruments Act, 1881-S. 118-presumption under-may be rebutted-cash consideration alleged-presumption how may be rebutted.
Under section 118 of the Act, there is a presumption that a negotiable instrument has been endorsed for consideration.
(Para 25)
The presumption arising under section 118 of the Act may be rebutted by direct or circumstantial evidence or even presumption of case or fact. AIR 1961 SC 1316 referred to.
(Para 7)
Where in the promissory note a cash consideration of Rs. 30,000 was mentioned and it was alleged that this consideration was paid out of an amount received by from a sale, but evidence showed that such amount was not received, the presumption under section 118 was rebutted and shifted the onus of proof.
(Para 10)
(3) Civil P.C. 1908-Order 8, Rule l-pleadings-admissions in a written statement-some facts favourable to plaintiff and some unfavourable-whole of the statement should be considered-this rule does not apply to admissions of law-Evidence Act, 1872-S. 31.
(4) Practice (Civil)-pleadings-interpretation of-use of admissions in written statements.
If a written statement incorporates an admission of some facts favourable to the plaintiff and a denial of certain other facts favourable to him or an assertion of still other facts which are unfavourable to him, he (plaintiff) must, if he wants to take advantage of the admission, take not only the first set of facts as truly stated but also the second set of facts as so stated. But the principle is limited in application to facts and does not embrace within its ambit any plea of law raised by the defendant on the cumulative effect of the two sets of facts. AIR 1915 PC 2, 9 Suth. W.R. 190, 9 Suth. W.R. 130 referred to.
(Para 13)
(5) Civil P.C. 1908-Order 6, Rule 2 & Order 7, Rule 7-alternative case of plaintiff-not pleaded in plaint-admitted by defendant in written statement-relief may be given to the plaintiff on such alternative case.
It is now well established that where an alternative case, which the plaintiff could have made, but did not make in the plaint, is admitted by the defendant in his written statement, it is permissible to grant to the plaintiff relief on that basis. AIR 1951 SC 177 relied on.
(Para 14)
(6) Civil P.C. 1908-Order 6, Rule 2-variance in pleading and proof-evidence when excluded.
The rule no doubt is that no amount of evidence can be looked into upon a plea that was never made. But that rule is based mainly on the principle that no party should be prejudiced by the change in case introduced by this method. The question in ultimate analys is one of circumstances and not of law. AIR 1930 PC 57, 12 M.I.A. 7 & AIR 1915 PC 89 referred to.
(Para 15)
(7) Contract Act, 1872-S. 2 (d)-consideration-performance of an existing duty to a third party-is valid consideration.
M contracted to sell property to X for consideration. D executed a promissory note in favour of M for Rs 30,000 for the consideration that M executes the sale deed in favour of X. Out of this sale price D was to receive a huge amount which he in fact received.
Held: The promise of M to perform his part of the executory contract for sale of the property which he had already contracted with a third party X so to do, constituted a good consideration for the promissory note executed by D, who upon subsequent performance of the promise, admittedly recovered out of the price realised by the sale of the property a sum of Rs. 3,25,000. Case law discussed.
(Para 22)
( 1 ) THIS appeal by the defendant 1 is directed against a money decree for Rs. 30,000/- together with interest and costs grounded upon a promissory note dated 10th September, 1962, which he had executed for that sum in favour of the defendant 2, who subsequently endorsed it in favour of the plaintiff.
( 2 ) THE material facts which are not in controversy may be shortly stated. At Ujjain, the defendant 1, Indermal, had executed in favour of the defendant 2, Mohammad hussain, the promissory note Ex. P. 1 dated 10th September, 1962 for an apparent consideration of Rs. 30,000/-repayable on demand and carrying interest at 6% per annum. On the back of that document, there is an endorsement in favour of the plaintiff, Ramprasad, which purports to have been made at Mhow in indore Civil District within the jurisdiction of the lower Court. Upon demand having been made by the plaintiff for the amount due on the promissory note, the defendant 1 did not make any payment.
( 3 ) RAMPRASAD (Plaintiff) averred that the promissory note was executed for a cash consideration of Rs. 30,000/-, that it was endorsed in his favour at Mhow for consideration and that, being thus the holder in due course, he is entitled to recover the amount due thereon. While the promisee Mohammad Hussain (defendant 2) accepted these averments, the promisor Indermal (defendant 1)resisted the claim on several grounds.
( 4 ) THE defendant 1 denied that he received any consideration for the promissory note and pleaded that he executed that document in order to persuade the defendant 2 to sign the sale deed of Nazar Ali Mills, Ujjain, so that the sale proceeds thereof might be made available for satisfying the numerous creditors of those Mills. According to the defendant 1, the consideration for execution of the promissory note was thus against public policy and unlawful. Further, the amount due under the promissory note was, by agreement arrived at between the parties, adjusted towards the amount due to the defendant 1 under a decree passed against several persons including the defandant 2, who did not then return the promissory note on the pretext that it was lost. The defendant 1 further denied that the plaintiff was the holder of the promissory note in due course and contested his claim that it was duly negotiated or endorsed in his favour either at mhow or for consideration.
( 5 ) UPON a consideration of the evidence led by the parties, the lower Court held inter alia that the promissory note was negotiated and endorsed at Mhow for a consideration of Rs. 20,000/- and, therefore, the Court at Indore had jurisdiction to try the suit but the plaintiff, being admittedly aware that the amount had already become due and had not been paid in spite of demand, was not a holder in due course. The promissory note itself was, however, found to have been executed by the defendant 1 for Rs. 30,000/-received by him in cash and it was further held that, even the consideration for that document, as pleaded by him in his defence, was valid and good in law.
( 6 ) IN the memorandum of appeal, the defendant 1 raised ground No. 20 to challenge the lower Court's conclusion that it had jurisdiction to try the suit, His counsel, however, readily conceded before us that he was unable to show that any prejudice was caused by reason of the fact that the suit was tried at a wrong place, Indore, instead of Ujjain. That being so, the conclusion is, having regard to the provisions of Section 21 of the Code of Civil Procedure, not assailable. The further finding that the plaintiff was not a holder in due course was, in view of the evidence on record and the circumstances of the case, not challenged before us. The learned counsel for the defendant 1, however, vigorously attacked the following conclusions:
(i) That the promissory note was executed for a cash consideration of rs. 30,000/ -. (ii) That even otherwise, it was, in the circumstances pleaded by the defendant 1 himself, support
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