Decided on August 29,1979



B.K.MEHTA, G.T.NANAVATI - (1.) This appeal at the instance of the original plaintiff is directed against the judgment and order of 3rd Joint Civil Judge (S.D.) Baroda dismissing the suit of the plaintiff for recovery of Rs. 7 0 as and by way of principal amount together with Rs 3 250 as and by way of interest of a promissory note of October 23 1968 said to have been executed by the original diffident for Rs. 7 0 for value received. In the opinion of the learned Judge the presumption raised on the basis of the promissory note in question was rebutted since the plaintiff had failed to produce the relevant account books to establish the consideration for which the note was executed by the defendant. It is this order of the learned Judge which is challenged in this first appeal before us.
(2.) The respective cases of the parties hereto may be shortly referred to. The plaintiff is a dealer in cloth and defendant was a person of his acquaintance and was his customer. He used to purchase cloth goods on credit from time to time. The plaintiff claimed that on October 23 1968 the accounts of the defendant were settled and he executed a promissory note for Rs. 7 0 which he promised to repay with interest at the rate of 18% per annum. The plaintiff however restricted his claim on account of interest at the rate of 15%. Before filing the suit he called upon the defendant by the letter of his Advocate of 2nd July 1971 to arrange to pay the said amount together with interest failing which he would be constrained to file the suit to recovery the said amount. Since the defendant failed and neglected to comply with the demand made in the notice the present suit being Special Civil Suit No. 215 of 1971 was filed in the Court of Civil Judge (S. D.) at Baroda for recovery of Rs. 7 0 as and by way of principal amount and Rs. 3 150 by way of interest.
(3.) The defendant resisted the suit contending inter alia that he had not borrowed any amount from the plaintiff nor any accounts were settled on 22nd October 1968 or on any other occasion as alleged. He denied that he executed any promissory note for Rs. 7 0 on the said date and promised to repay the said amount with interest at the rate of 18 per annum. A plea of limitation was also raised by the defendant. The version of the diffident was that the plaintiff and his son were friends and since he was doing business in cloth goods and cotton threads he was required to visit Ahmedabad in connection with his business from time to time and therefore used to here taxi of his son for which his son used to charge him Rs. 100.00 per day having regard to their friendly relationship but the plaintiff did not use to pay the said charges in cash but used to credit the said amount in the accounts of his son in the trading books of the plaintiffs business. His son used to withdraw the amount whenever he required either for purposes of repair of the car or for payment of petrol bills. His son also used to purchase cloth from the plaintiffs shop and the plaintiff also used to advance cash amounts if there is no credit balance in the accounts of his son for which no interest was charged. His son also used to deposit the amounts with the plaintiff whenever there was a surplus cash on his hand. In view of this close relationship between the plaintiff and his son the defendant always respected him and held him in high esteem and treated him as his well wished and always used to place confidence in him that he would never do any bad turn to him. According to the defendant he was required to give some writing by the plaintiff stating that the accounts had been settled between the plaintiff and his son. The defendant assured to do needful after consulting his son. The defendant had there after told the plaintiff that in no case his son was indebted to him in more than Rs. 1500.00 to Rs. 2000.00 and thereupon the plaintiff assured him that if the defendants son declared that no accounts were settled between them the writing would be challenge. The plaintiff further assured him that no suit was to be filed on the basis of the said promissory note which was required by him for personal reasons of his business He made a grievance against the defendant that the defendant was not prepared to rely on the statement of the plaintiff who always showed love and affection towards the defendant. In the circumstances the writing in the nature of promissory note was executed. He pleaded that there was no consideration for the alleged promissory note which the plaintiff had got executed from him by misrepresentation and under undue influence exercised upon him.;

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