ALI HUSSAIN Vs. PESSUMAL

JUDGEMENT

(1.) THIS appeal, filed by the defendant, is directed against a decree of the First Additional District Judge, Bhopal, dated 3rd March 1965, affirming the judgment and decree of the Second Civil Judge, Class II, Bhopal, dated 7th March 1964.

(2.) THE relevant facts are these. THE parties had dealings between them and the defendant used to borrow money from the plaintiff on Hundis. THE plaintiff's case is that on 23rd January 1962, the defendant drew a Hundi upon himself payable after 180 days at sight a sum of Rs. 2500/-, but that when it was presented for payment on 27th July 1962 the defendant dishonoured the S. A. No. 376 of 1965 decided on 12-4-1968 from the appellate decree of M. P. Bhatnagar, First Additional District Judge, Bhopal, dated 3-3-1965 in C.A. No. 10-B of l964, confirming the decree of D. S. Pathak, Second Civil Judge, Class II, Bhopal, dated 4-3-64, In C.S. No. 24.B of 1982. N. Hundi. THE defendant denied execution of the Hundi itself as also its consideration and further urged that the plaintiff was not entitled to any interest thereon. THE Court of first instance held that the defendant had executed the Hundi and that it was for consideration, and, therefore, decreed the plaintiff's suit with interest at 6 percent per annum. THE Court below has affirmed the decree in appeal rejecting all the contentions urged.

(3.) THE next objection is that the plaintiff having withheld his account books to show that the consideration had been advanced, the Court should have drawn a presumption under section 114, Evidence Act, to the effect that if he had produced the said accounts, they would be unfavourable to the plaintiff. It is urged that this presumption can under certain circumstances, rebut the presumption arising under section 118 of the Negotiable Instruments Act, and the failure of the Court below to do so, vitiates its finding that the Hundi was for consideration. THE circumstances in Kundanlal Rallaram v. Custodian of Evacuee Property, Bombay4, wherein their Lordships have stated