SAYAMMA DATTATRAYA NARSINGRAO Vs. PUNAMCHAND RAICHAND MARWADI

JUDGEMENT

(1.) The plaintiff had taken in pledge certain ornaments from defendant No. 1. Defendant No. 1 asked for the loan of the ornaments for a festive occasion, promising to return them within a few days. The plaintiff allowed him to take them, but defendant No. 1 did not return them, and disposed of them elsewhere. Thereupon the plaintiff charged him with offences under Section 406, Indian Penal Code, criminal breach of trust, and Section 420, Indian Penal Code, cheating. During the pendency of the complaint the matter was settled by defendant No. 1, his brother-in-law defendant No. 2, and defendant No. 3 who is a sister of defendant No. 2, passing two promissory notes of Rs. 7,500. The plaintiff sued on these promissory notes, and the First Class Subordinate Judge of Poona has given him a decree. Defendant No. 3 has appealed, and the principal ground taken in appeal is that the consideration for the notes being the withdrawal of the complaint, is against the provisions of Section 23 of the Indian Contract Act, and therefore no suit can lie.

(2.) Before dealing with this point, I may briefly refer to the argument of the learned counsel for the respondent that this point was not taken in the written statement, the contention being that the plaintiff represented to the defendants that the promissory notes were hollow, and would not be acted upon. This is an argument which has now been given up, but the contention that the consideration was against the law will be found in paras. 4, 5 and 6 of the written statement. Even if it were not so, it is a point of law, and can, therefore, be taken in appeal.

(3.) A number of cases have been quoted on both sides, but before considering them, it would be necessary to have an accurate statement of the facts.