Decided on March 02,1983



- (1.) THIS Rule arises out of an application under section 25 of the Provincial Small Causes Courts Act where the High Court for the purpose of satisfying itself that a decree or order made in any case decided by that Court was according to law may call for the records. Accordingly, the record was called for. The suit as made out in the plaint was for a decree of a sum of Rs. 5,000/- and costs on an accommodation loan taken by the defendants Smt. Dipti Mitra and Messrs. Oriental Enterprises from the plaintiff to the tune of Rs. 4,000/- on June 26 1976 executing a promissory note signed by Dhirendra Nath Mitra, husband of the defendant: no. 1 on the capacity of Constituted Attorney of defendants. Money was not repaid on repeated demands and a suit was filed in the Small Causes Court for a sum of Rs. 5,000/- which was within the jurisdiction of that court giving up Rs. 400/- which became accrued due by way of interest. The defendants filed the Written statement denying the validity of the transaction and capacity of the plaintiff to get a decree. The defendants took the ground that non joinder of Dhirendra Nath Mitra, the husband and the Constituted Attorney in the suit was fatal for the suit. The defendants also denied any knowledge about the execution of the said Promissory Note by dhirendra Nath Mitra. The defendants also denied the authority of Dhirendra Nath mitra to execute such a Promissory note. It is also denied that the plaintiff had lent any money to the defendants or to any of them. The defendants further assert that the plaintiff had no cause of action against the defendants.
(2.) THE learned Judge on the assessment of evidence had, however, decreed the suit in favour of the plaintiff He observed in his judgment "it further transpires from the documentary evidence as well as from the oral evidence that the defendant Smt. Dipti Mitra was the sole proprietress of M/s. Oriental enterprises at 242, Jessore Road Clive house Dum-Dum". He further observed that the said fact was admitted by the defendants. On further scrutiny of the evidence, he came to the finding that the husband Dhirendra Nath Mitra was looking after the business and giving instructions to the lawyer on her behalf. After a careful consideration of the evidence adduced both oral and documentary, he found that Rs. 4000/-was advanced as loan to Oriental Enterprises on the basis of an account payee cheque and the said cheque was duly encashed through its own account, and admittedly the said amount has not been repaid by the defendants.
(3.) HERE in this connection I wart to set out the arguments of Mrs. Dipti kana Basu appearing for the defendants her argument is that the learned Judge was wrong in coming to the finding that husband was the agent of the wife and the l e a r n e d judge should have held that the creditor should have satisfied himself about the right or authority of the husband to bind the wife for the loan advanced and she generally argued that the decision was based on improper and erroneous appreciation of evidence. In support of her contention Mrs. Bose argued before me ' that as on the promissory note the name on the wife Sm. Dipti Mitra did not appear anywhere the promissory note in question does not and cannot bind the principal. She referred to me the provisions of Sections 27 and 28 of the Negotiable Instruments Act. But here one thing has been missed in my view that it was not a suit on a promissory note as such it is a suit for money lent and advanced and it appears from the evidence that the money had been encashed, after the cheque being an Account payee cheque and credited in the account of Messrs. Oriental Enterprise of which Sm. Dipti Mitra was admittedly the proprietress.;

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