SHRI M.K.C. RAO Vs. ALI MOHAMMED AND ORS.

JUDGEMENT

(1.) THIS is an appeal by the Plaintiff against the judgment of the Subordinate Judge of Cuttack dismissing his suit for recovery of a sum of Rs. 10177.86 with interest from Defendants 1 and 2.

(2.) THE suit was brought on the allegation that, on 3 -10. 955 the Plaintiff gave a loan of Rs. 11,000/ - to Defendant No. 1 in the presence of Defendant No. 3 and that by way of collateral security a handnote (ext. 2) was executed by Defendant No. 1 in favour of Defendant No. 3, agreeing to repay the said sum with interest at 6 percent per month (72 percent per annum). As the Plaintiff is not the bolder of the promissory note on the basis of the hand -note and hence he brought this suit on the basis of the loan which, according to him, was directly advanced by him to Defendant No. 1. The Plaintiff is a practising Advocate of Cuttack Bar. Defendant No. 3 is a Kabuli who was carrying on money -lending transactions in Orissa for some time and who admittedly left Orissa for Afganistan about 4 years ago. It is also admitted that Defendant No. 3 was a client both of the Plaintiff and of the Plaintiff's father Shri. M.S. Rao who is one of the senior Advocates of Cuttack. Defendant No. 1 was, at all material times, working as a contractor in the Hirakud Dam Project.

(3.) THE lower Court was not inclined to accept the evidence of the Plaintiff to the effect that the loan was advanced by him to Defendant No. 1 and that there was no relationship of creditor and debtor between the two. He preferred the evidence of Defendant No. 1 on this point and held that the relationship of debtor and creditor existed only between Defendant No. 1 and Defendants No. 3. He was inclined to hold that Defendant No. 3 might pay received money from the Plaintiff before giving it as a loan to Defendant No. 1 and that might make the Plaintiff the creditor of Defendant No. 3 so far as that transaction was concerned, but that it would, furnish a cause of action for the Plaintiff against Defendant No. 3 only.