RUP NARAIN Vs. TIRBENI SAHAI ALIAS MANGOO LAL

JUDGEMENT

(1.) This is a defendant's appeal in a suit for recovery of money on foot of a simple instalment bond. The defendant Chaube Rup Narain had on 6 September 1933 executed an instalment bond for RS. 5500 in favour of the plaintiff Babu Tirbeni Sahai alias Mangoo Lal son of Har Prasad Kayastha of Sarai Miran in the Farrukhabad district in lieu of the amount due to the creditor on a promissory note dated 25 September 1927, limitation in respect of which promissory note had been extended by a payment of Rs. 100 in cash on 22 September, 1930. The promissory note of 1927 had itself been executed in lieu of a promissory note dated 2 October, 1924. Under the provisions of the bond in suit the borrower, the present defendant, was to pay the amount of the loan in annual instalments falling due on Jeth Puranmashi of Sambat 1991 to 1997. The first five dates would be 27 June 1934, 16 June 1935, 5 June 1936, 23 June 1937 and 12th June 1938. When limitation was about to expire in respect of the first instalment due on 27 June 1934, a payment was made by the borrower to his creditor of Rs. 100 on 15 May 1937, and two endorsements were made on the bond in respect of this payment. These endorsements will have to be discussed later but they make it clear, at any rate, that the payment was made and accepted for the purpose of extending limitation. No further payment having been made, the plaintiff on 4 July 1938, when five instalments had fallen due, instituted the present suit claiming the amount due up to date but disclaiming any intention to assert a right to recover the whole balance including the instalments which had not yet become due. It will be a point for consideration later whether he would have had really any right to claim those instalments which had not yet fallen due under the special terms of the bond in suit. The plaintiff evidently thought he had such a right and in this appeal it has been argued on behalf of the appellant defendant that this was a bond which gave the creditor such a right or option.

(2.) The defendant took a number of defences but the most important of these defences and the only ones which have come up for re-consideration in the argument of the appeal were, first, a plea that this bond and the promissory notes which it replaced had been obtained by the exercise of undue influence and, secondly, that the suit was barred by limitation. In the written statement, the defendant explained his defence of undue influence in this way that he said that in the year 1918, when he was still a minor, his creditor's father put pressure upon him to execute a promissory note Ex. L for Rs. 900 upon a threat that if the defendant did not execute that promissory note he, Babu Har Prasad, who was the legal adviser and mukhtar of the defendant, would cease to work for defendant in the Courts. In para. 9 which related to the various pronotes said to have been executed in renewal of the pronote of 1918 nothing was said about undue influence, but in para. 10 which related to the execution of the bond in suit it was again said that this was the result of undue pressure brought upon the defendant by the father of the plaintiff. The learned Civil Judge framed a number of issues but, as we have indicated already, the only issues with which we are concerned in this appeal are issues 2 and 3 which run as follows: Issue 2. Was the original pronote for Rs. 900 executed by defendant under undue influence during minority and were the subsequent pronotes and the bond in question executed under similar undue influence ? Issue 3. Is the claim barred by limitation ?

(3.) The learned Civil Judge discussed the questions which arose under issue 2 along with those which arose under issue 1, namely, is the bond in question, without consideration ? He devoted some seven pages of the printed paper-book to a discussion of these issues and he came to a clear finding that there was no proof that any undue influence was exercised at the time of the execution of any pronote which had come under consideration in this case or of the bond in question. On issue 3 relating to limitation he held that Art. 75, Limitation Act, was applicable but that the plaintiff had clearly established waiver in respect of the right to sue for the whole amount of the bond including those instalments which had not yet become due. In respect of the first instalment he held that limitation had been extended by the payment of Rs. 100 mentioned earlier.