Decided on June 08,1951

Chunilal Bhoopal Appellant
Amarendra Chandra Dutta Respondents


RAM LABHAYA, J. - (1.) THIS appeal arises out of a suit for the recovery of a sum of Rs. 1,200. The suit was decreed in the trial Court. The learned Additional Subordinate Judge reversed the decree of the Court below and dismissed the suit. The plaintiff has come to this Court on second appeal.
(2.) IN the trial Court, the plaintiff's case was that the husband of defendant 4 who was the father of defendants 1 to 3 borrowed Rs. 1,200 in cash from him on 27 -8 -1943 and executed a hand -note for it. He agreed to pay interest at the rate of 1 per cent, per mensem on the amount borrowed. On 12 9 -1943, plaintiff demanded the repayment of the loan and he got a cheque dated 12 -9 -1943 for the amount from his borrower, who being dead is now represented by the four defendants. The cheque was duly presented in Bank on 12 -9 -1943 but it was dishonoured. The plaintiff alleged that he informed Jogendra Dutta, deceased, about its dishonour, but he did not pay the money but was just putting him off. He died in 1945. The suit was therefore, instituted against his legal representatives. The suit was resisted. It was pleaded that no money was borrowed by Jogendra Dutta, deceased, on 27 -8 -1943. The execution of the hand -note was also denied. As regards the cheque, the defence raised was that it had been fraudulently obtained by the plaintiff on 27 -8 -1943 for wrongful gain.' The allegation about the notice of dishonour was also denied. It was further pleaded that Jogendra Dutta, deceased, was insane from 1942 and therefore the bandnote and the cheque did not create any enforceable liability. The learned Munsiff found that the execation of the cheque had not been denied and that the evidence adduced by the defendants did not establish that he was insane or of unsound mind during the period commencing from 27 -8 -1943 and ending on 12 -9 -1943. He also found, relying on plaintiff's evidence, that the sum of Rs. 1,200 had been borrowed.
(3.) THE learned Additional Subordinate Judge found that Jogendra Dutta, deceased, was proved to have been insane on the relevant dates. He also held that it had not been established that the cheque was drawn by the deceased. In his view the khata entry was not the basis of the plaintiff's suit. On the question of the alleged notice of dishonour, he found against the plaintiff and held that in the absence of notice of dishonour the suit was not maintainable.;

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