Balaram Das Agarwalla vs Kesardeo Khemka

Bijayesh Mukherji, J.—This is a suit by Balaram Das Agarwalla on the foot of assignments dated August 5, 1955, of two hundis drawn by the Defendant Khemka--one on June 6, 1955, as a partner of Central Talkie Equipment Company, a firm, in favour of Pramila Debi, payable within 90 days and accepted by the Defendant personally and another on July 12, 1955, on his own in favour of Pramila''s husband, Dharam Chand Jain, payable within 30 days and accepted by one Hiralal Agarwalla. Each hundi was for Rs. 5,000. Assignments over notice thereof was duly given to the Defendant. More on the due date, each was duly presented--the one of June 6, 1955 to the Defendant and the other of July 12, 1955, to the acceptor Hira lal Agarwalla. Result: each was dishonoured by non-payment. Notice, of such dishonour, duly given to the Defendant, yielded little re suit. Hence this suit for recovery of the principal sum of Rs. 10,000 plus the statutory interest of 6% a year, totalling Rs. 11,775.

A suit as this, raised on August 11, 1958, is resisted by the sole Defendant, Kesardeo Khemka, by a written statement filed on March 17, 1959. The pleas taken are

(1) He was not a partner ever of the firm: Central Talkie Equipment Company

(2) He was compelled to sign the hundi of June 6, 1955.

(3) No consideration passed either for that hundi or the latter one of July 12, 1955, which, however, is admitted to have been "signed" by him.

(4) The knowledge of assignment of the two hundis on August 5, 1955, is denied is denied too the giving of any notice of assignment to him.

(5) The presentation of the two hundis, dishonour thereof by non-payment and the giving of the notice of such dishonour are also denied.

The parties go to trial on the following issues:

(1) Did the Defendant execute the hundi for Rs. 5,000 on June 6, 1955, as a partner of Central Talkie Equipment Company, a firm, as set out in para. 1 of the plaint?

(2) Did the Defendant execute the other hundi for Rs. 5,000 on July 12, 1955, as set out in para. 2 of the plaint?

(3) Did consideration pass for the aforesaid two hundis?

(4) Is the Plaintiff an assignee for valuable consideration of the aforesaid two hundis?

(5) Was the notice of assignment, if any, given by the Plaintiff to the Defendant?

(6) Were the aforesaid two hundis duly presented--the first one to the Defendant and the second one to Hiralal Agarwalla, the acceptor, on due dates and dishonoured by non payment?

(7) What reliefs, if any, is the Plaintiff entitled to?

The Plaintiff examines himself, solicitor Trilokesh Goswami and the said solicitor''s clerk, Sudhir Kumar Sett. The Defendant examines himself. This is all the oral evidence led at and during the trial.

The documentary evidence consists of

(1) The Plaintiff''s affidavit of documents, for this suit affirmed on February 1, 1962 and filed on February 6, following Ex. A,

(2) a copy each of the two hundis as annexed to the plaint Ex. B/1, going in as secondary evidence, the originals having been lost,

(3) an endorsement over the signature dated August 23, 1958, of clerk Sudhir Kumar Sett in the Register of Plaints (1958-59) of this Court, in token of having received back the original documents of this suit, Ex. C/1,

(4) the Defendant''s affidavit of documents for this suit, affirmed on June 15, 1962 and filed on June 28, following Ex. D,

(5) Master''s summons coupling with affidavit of service thereof dated December 23, 1958, touching the Defendant''s call for further and better particulars of the notice, of assignment, presentation of the two hundis, notice of dishonour etc. pleaded in the plaint, Ex. E,

(6) the Defendant''s supporting affidavit affirmed on December 22, 1958, for the aforesaid particulars, Ex. F, for the Plaintiff; and

The Plaintiff''s warrant of attorney dated August 17, 1961, Ex. 1, for the Defendant.

First to the first two issues the burden of which is execution of the two hundis by the Defendant--the first one of June 6, 1955 as a partner of the firm, Central Talkie Equipment Company and the second one of July 12, 1955, on his own. Mr. Gautam Chakrabarti, the Learned Counsel for the Defendant, attacks the very root of this litigation, contending that the loss of the two original hundis has not been proved, evidence to that end being full of infirmities and that no foundation has therefore been laid for reception of the secondary evidence in the shape of a copy each, annexed to the plaint, Ex. B/l collectively, of the two original hundis. If this contention is worthy of receiving effect, the suit fails here and now. It is indeed plain that a suit founded on two hundis, as the suit before me is, cannot succeed in the absence of the two hundis.

In view of this contention, how a copy each of the two hundis gets into evidence needs looking into. On or about August 1, 1958, solicitor Goswami received the two hundis from the Plaintiff. He received too the necessary instructions, had had the usual discussions and asked his client (the Plaintiff) to see him again some 4, 5 or 6 days later. Thereafter, he engaged a counsel to draw the plaint, got it drawn up, discussed with the client the draft so made, finalised it, had it engrossed, got it signed too by the client and filed it along with the two original hundis--the hundis he had personally seen. In the course of the examination of the hundis then, he had noticed the usual endorsements by the drawer and the acceptor; he had noticed too the two endorsements in token of assignment-one on each. One such assignment was by the original payee, Dharam Chand Jain and another by the same person,* but as the constituted attorney of his wife Pramila Debi. To return to the plaint, it was filed along with the two original hundis on August 10 or 12, 1958, as solicitor Goswami says. In fact, it was filed on August 11. Some 10 or 12 days after that, the hundis were taken back by the said solicitor''s Court clerk, Sudhir Kumar Sett, from the department. The endorsement of Sett, in token of having received back the original documents from the department, is dated August 23, 1958, Ex. C/1, just 12 days after the filing of the plaint. As 1958 was reaching its end, solicitor Goswami took A.K. Dutt as his partner. And soon thereafter, from 1959, disputes and differences arose between the two, Dutt and Goswami. The Plaintiff was paying periodic visits to his solicitor (Goswami) all the time. But during his calls after the partners had fallen out, "a very curious thing" happened. The two original hundis, on the basis of which the plaint was drawn up by Mr. P.K. Das under the supervision of solicitor Goswami, could not be found, though they were lodged in the iron safe in which all the original documents were kept by D.C. Dutt and Company of which Goswami and Dutt were then the "warring" partners. Arid the keys of the safe were with Dutt who is now dead. Both the partners searched for the missing hundis in the iron safe and also other places in the office. Not only the two hundis, other documents were found missing too. The partnership firm of Goswami and Dutt: D.C. Dutt and Company, was dissolved. More upon arbitration proceedings, a decree followed upon the award of the arbitrator. And Dutt was directed to make over all the cause papers and documents to Goswami. Dutt, in obedience to such direction, did return some of the papers, but not the two missing hundis. Having said all this Qq. 3-11 to solicitor Goswami solicitor Goswami looks at the copies of the hundis, annexed to the plaint and affirms that they must be correct, because it was he who had compared the copies with the originals. More, each of the two copies was typed under his supervision. He continues: On August 11, 1958, when the plaint of this suit was filed by him, the two original hundis were annexed thereto, tied with a thread. Perforation marks running through each page of the 24-page and 12-leaf plaint are there to this day as a mark of the two hundis having been tagged so. Copies thereof annexed to the plaint are true copies prepared

Here all I am doing is to reproduce the evidence of solicitor Goswami in answer to question No. 5. There it his gone down as one endorsement by the drawer as the constituted attorney of his wife Pramila. Drawer is obviously either a recording mistake for the payee or a slip o� tongue of the witness.

under his supervision and compared by him with the originals. Only then the annexures A and B to the plaint, a copy each of the two original hundis, arc tendered. Only then I direct reception B of such secondary evidence, overruling Mr. Chakrabarti''s objection thereto. And the copies are marked Ex. B/1 collectively.

As J retrospect and reminisce, I find little to unsay what I have said at the trial in receiving the secondary evidence on materials come before me up to that stage. Here is a solicitor whom I hear saying on oath from the witness-box that he was entrusted by his client, the Plaintiff before me, with the two original hundis on August 1, 1958, or thereabouts, to raise an action thereon that he did raise it in August 1958, by having gone through all the preliminaries detailed above, the most important of which on the point under discussion is that a copy each of the two hundis was prepared under his supervision and compared by him with the originals that from 1959 onward the original hundis lodged in the iron safe of his office were missing; that search was made for the missing documents in the iron safe and also elsewhere in his office, just the places where they were most likely to be found. On such materials, I rule that secondary evidence is receivable, governing myself by Section 63(3) of the Evidence Act 1 of 1872, which makes "copies made from or compared with the original" secondary evidence (just as a copy each of the two original hundis is), no less by Section 65(c) ibid, providing for reception of secondary evidence of the contents of a document (here a hundi each numbering two) when the original has been lost (as here: the two original hundis have been lost). I, therefore, reiterate my ruling at the trial directing reception of secondary evidence after having overruled Mr. Chakrabarti''s objection thereto.

This does not however mean that the matter is closed throughout the remainder of the trial. If, for example, cross-examination of solicitor Goswami or other evidence admitted by me reveals that the two original hundis cannot be said to have been lost or that the copies I have received in evidence have neither been made from nor compared with the originals, the very basis of my ruling goes. And once the ground of my ruling is displaced, it is as much open to me to reject such evidence at a later stage, as it is open to Mr. Chakrabarti to argue that that should be done. Mr. Chakrabarti means no more when he returns to the subject of the admissibility of the copies of the two original hundis, Ex. B/1, at the time he addresses me towards the concluding stage of the trial. Not that he casts any aspersion on the ruling I pronounced at the earlier and necessarily, incomplete stage of the trial. Indeed, knowing him as I do, he is incapable of doing so.

Now, may be noticed what Mr. Chakrabarti submits, with a view to convincing me that the copies, Ex. B/1, of the two original hundis have no standing as evidence. The holder''s right to duplicates of lost bills, as provided for by Section 45A of the Negotiable Instruments Act, 26 of 1881 has not been availed of. Hence, it is said, the Court should be slow to find as a fact the loss of the two hundis. A submission as this merits two answers. First: the two hundis here were lost in or about 1959 not before they were overdue, but long after they had become overdue--one on September 4, 1955 and another on August 11, 1955: vide Sections 22 and 24 ibid, the parties having contracted out of days of grace. So, Section 45A does not in terms apply. Second not availing of this section does not necessarily mean that the bill concerned has not been lost. A genuine loss and not calling in aid Section 45A may co-exist. Since I am dealing with bills lost long, long after their maturity, it is Hardly necessary to develop this aspect of the matter, save this Section 45A does not say to the holder--"Unless you exercise your right to the duplicate of a lost bill in the manner set out, you are debarred from getting relief by a suit, even if you satisfy the Court of the loss of the bill and the genuineness of your claim." Surely, a recalcitrant drawer refusing to give a duplicate bill may be compelled to do so by a suit. But that does not mean that in all cases there must be a prior suit to lay the foundation of a subsequent suit grounded on a lost bill.

This firm of solicitors dissolved and "a very few documents" made over by Dull to Goswami, the latter had not asked the former "particularly about these two hundis. He had not, because before he had come out of the office, before the dissolution took place, he had treated the hundis as lost. Such is the evidence solicitor Goswami gives in chief (qq. 27 and 28). And Mr. Chakrabarti seizes such evidence to argue that loss within the meaning of Section 65(c) of the Evidence Act 1 of 1872 has not been proved. Goswami''s, dispute with Dutt, it must be remembered, commenced towards the middle of 1959 and ended "after the dissolution in April 1961". And in 1961 too he had started his new office at 7 Old Post Office Street, his previous office having been at premises No. 7 of the same street, out of which he had therefore come in 1961. (See qq. 76-79). But the two hundis were lost in 1959. And for two years 1959 and 1960, he along with his clerks and partner had made "vigorous searches" for the missing documents. Were so searched the safe itself, the drawers of the two almirahs, What has gone down in evidence is : "the two almirahs of the drawers", manifestly a mistaken recording or a slip. (See q. No. 65 to solicitor Goswami) the drawers of the managing clerk and the Court clerk indeed, the very places where the two hundis gone to hiding, as it then seemed, were most likely to be had. No hidy-holes were detected, the vigorous search for two years, 1959 and 1960, having proved barren. (See qq. 6, 64, 65 and 92). So when the two partners parted in or about April 1961, if Goswami had treated them as lost and therefore made no particular mention thereof to Dutt, Goswami''s conduct does hot appear to be deserving of the criticism Mr. Chakrabarti makes. Nor does it, coupled with; the fact that Goswami cannot explain how these documents disappeared (q. No. 67), which also Mr. Chakrabarti makes a point of, lead to the inference that the loss of the two original hundis is not proved or disproved. Let not common sense or the reality we pass through every day be overlooked. Loss can never be proved absolutely, as Lord Thankerton observes in AIR 1935 132 (Privy Council) could that be done, there would have been seldom a loss. Loss means losing which again means mislaid. And mislaid connotes placed amiss: one knowing not where the thing mislaid is or has gone. If I can say exactly when and where I lost a thing, in all likelihood I would not have lost it. Just so has been the case of the two missing hundis. Solicitor Goswami says as much:

It must have been misplaced with some other papers (q. No. 58).

By "it" he means the two hundis. I am therefore unable to accept the contention that loss thereof within the meaning of Section 65(c) of the Evidence Act has not been proved.

The delay in filing the affidavit of documents, Ex. A on February 1, 1962, by the Plaintiff, some four years after it was due in 1958, has been commented upon. But solicitor Goswami was expecting the missing hundis to come up anytime. And that made the delay. (See qq. 41-45 and 71-75). Placed in the predicament in which solicitor Goswami found himself right from 1959, one may be forgiven waiting for something to turn up. Indeed, one is then apt to hope so, though he may be hoping against hope. But, if anything, far from disproving loss, this sort of delay makes such loss probable all the more. And to say, as Mr. Chakrabarti does, that expection as this to get back what have been missing, namely, the two hundis, casts a doubt about their having been lost, is to make the loss a permanent one: a loss for ever without any expectation of getting them back. That will however be reading more than what Section 65(c) of the Evidence Act 1 of 1872 bears on the point:

Secondary evidence may be given of the existence, condition or contents of a document in the following cases:

...

...

(c) When the original has been...lost....

The word is simply "lost". The words are not: "when the original has been lost for ever." Lost, without more, means that s the thing lost cannot be found out, when it is needed. If I lose my fountain pen for an hour, hoping all the time to discover it, which I do just after an hour, my fountain pen has none the less been lost to that extent. What counts here is the loss at the time when the suit comes to hearing and when the document lost is so badly needed. Furthermore, solicitor Goswami''s expectation, somewhat of a Micawberish type though, has been belied. So, the loss of the two hundis is there to be seen.

One discrepancy may be noticed here and now before proceeding with the further contentions of Mr. Chakrabarti that, on materials I have had put before me, I cannot be satisfied about the loss of the two original hundis. Solicitor Goswami, it has been observed, received the said hundis on or about August 1, 1958. (See para. 7 ante and qq. Nos. 3 and 34 to Goswami). But the Plaintiff Balaram Das Agarwalla will say in chief that he handed over the hundis to solicitor Goswami on August 7, 1958, when he had shown him the hundis too (qq. 47 and 46). This is the dis-crepency. I am not prepared to make much of it. Let it be remembered that Balaram Das was giving his evidence on September 20, 1965, of an event which had taken place a little more than seven years ago in August 1958. So a lapse as this is venial. That this is a lapse is apparent upon what he himself says. He had called on solicitor Goswami 5 or 6 days earlier than August 7, 1958. That would be August 1, 1958, or thereabouts: just as solicitor Goswami says too. Certainly they did not talk on weather that day. They talked about the case obviously. Balaram Das was accompanied by Dharam Chand, the original payee of one hundi and the husband of Pramila, the original payee of the other. Indeed, Dharam Chand, hundreds of whose suits based on hundis solicitor Goswami had tended in the past, took Balaram Das to him (Goswami) that day. (See qq. 33 and 87-90 to Goswami). It looks so unnatural that such a seasoned litigant as Dharam Chand would introduce his and his Wife''s assignee Balaram Das to Goswami for launching a litigation on the two assigned hundis without the hundis being carried by Balaram Das shown to the solicitor. Time was then running fast. For the hundi of July 12, 1955, payable within 30 days, the last day of filing the suit would be August 11, 1958, or thereabouts. And still Balaram, Das, accompanied by Dharam Chand, would wait on the solicitor on or about August 1, 1958 and without the hundi Clearly, therefore, what solicitor Goswami says about his having received the two hundis on or about August 1, 1958, appears to be true and nothing but true. Clearly, therefore, what Balaram Das says about having handed over the hundis to solicitor Goswami on August 7, 1958, appears to be a mistake and nothing but a mistake fostered by the passage of time of a little more than seven years when he was giving his evidence. Again, on August 7, 1958, Goswami had kept the papers (for filing the suit) ready, as Balaram Das says (q. No. 46). How could he have kept them ready on August 7, if he had not had with him the basic documents of the suit--the two hundis earlier on or about August 1? Last, but by no means least, Balaram Das is given an opportunity in his cross-examination to undo this mistake. He says that he handed over the hundis after he had seen Goswami (qq. 181 and 182). So nothing can hinge on this sort of a discrepancy which, upon the whole of the evidence, I regard as a discrepancy of truth, showing inter alia that Balaram Das''s evidence has not been "drilled".

Mr. Chakrabarti catalogues a number of facts and circumstances in support of his main point that loss of the two original hundis cannot be found as a fact. The more prominent of such facts and circumstances are

(1) Dharam Chand was alive in 1959 when the two hundis are said to have been lost. He died after 1962. (See qq. 189-191 to Balaram Das, the Plaintiff and q. No. 83 to Goswami). Why was he not examined de bene esse under Order 18, Rule 16, of the Procedure Code 5 of 1908, a rule which applies to this side of the Court except in so far as it relates ''to the manner of taking evidence, by virtue of Order 49, Rule 3(4) ibid. Non-examination of Pramila, who is alive, is also made a point of.

(2) Solicitor Goswami believes, there would be some correspondence in his file between him and his quondam partner, Dutt, about these lost hundis, showing a demand made thereof by him (Goswami) in writing. (Qq. 81, 82 and 99). Such correspondence is not forthcoming.

(3) In the day-books maintained by solicitor Goswami in 1958 and also August 1959 entries must have been made about these hundis. True, Dutt had not made the day-books over to Goswami. But no subpoena was taken for production of these documents day-books, even though the previous office was totally closed with the death of Dutt in October 1964, prior to which Dutt was carrying on as a practising solicitor (See qq. 49-56 and 101-103 to Goswami).

For the third circumstance just tabulated, solicitor Goswami has an explanation. He did not think it necessary to take out a subpoena for the production of the day-books of those days. He did not, because it would be difficult to get them, the previous office having been totally closed since 1964 (qq. 54-56). Not a bad explanation, in view of the utter failure to trace the hundis from 1959 onward, vigorous searches notwithstanding--searches in which Dutt had participated too. (See para. 11 ante). Not an ideal explanation either, in the sense that an attempt might have been so made by having subpoena''d even the heirs of Dutt, as Mr. Chakrabarti submits. If the attempt had failed, as it would have, in all likelihood, a criticism as this would have been disarmed.

Such an explanation apart, say, I reckon all Mr. Chakrabarti presses upon me against the Plaintiff. Even then the position at law is no more than this. For non-examination of Dharam Chand and Pramila, for non-production of the requisite correspondence etc., I may presume that were these persons examined, were the correspondence made available at the trial, they would not have supported the Plaintiff''s case about the hundis having been lost Section 114 of the Evidence Act 1 of 1872 does not enable me to go further than that. It does not say: I must presume. Here with all its infirmities, solicitor Goswami''s evidence stands. I shall not therefore make any presumption adverse to the Plaintiff. Again, another section of the same Act, Section 4, bears inter alia:

Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.

So, here also I may regard such fact (non-loss) of the two hundis proved. Therefore, I may not too. But I shall not, because the whole of the evidence completely satisfied me that the two hundis have been lost. Then, what can really be the object of a party making a case of a sham loss? The object is necessarily to foist upon its adversary a sham claim: (in the context of facts in hand) to make the adversary liable for a hundi he has not drawn. But here the clear admission of the Defendant Kesardeo Khemka in his written statement is that he did execute each of the two hundis. In the first paragraph, he avers, "he was compelled to sign" the hundi dated June 6. 1955, of Rs. 5,000, but he "did not receive the sum of Rs. 5,000 or any other sum at all". In the second paragraph, he avers, the hundi dated July 12, 1955, of Rs. 5,000 too "was signed" by him "without" having any consideration therefor. Whether or no he received any consideration forms the subject of the third issue and will be considered when that issue is reached. (See paras. 23-34 infra). So far, as the first two issues I am on now are concerned, the question of execution of the two hundis, because of such admission, has ceased, to be arguable even, as Mr. Panja, the Learned Counsel for the Plaintiff, rightly contends. Strictly speaking, these two issues do not arise, as also is Mr. Panja''s submission. No doubt, the first hundi of June 6, 1955, is purported to have been drawn by Kesardeo Khemka as a partner of Central Talkie Equipment Company, a firm and Khemka denies, he has been a partner thereof ever. But he has, been sued personally the partnership, if any has not been sued, as Mr. Panja contends. So, what does it matter that his description as a partner is there? More, it is a mis-description, to put it mildly and a false description, to put it bluntly because does not Keshardeo Khemka himself J admit in one breath that he had signed the hundi (under compulsion though) and deny in another breath that he has been a partner ever of Central Talkie Equipment Co? He does. So the mis-description, the false description nothing but a surplusage be excised. And what remains is the signature of Keshardeo Khemka saddling him personally with the liability for what he signed, namely, the hundi, provided that the hundi does not go down on the score of duress. (More of which hereafter in para. 33 infra.) In view of this clear denial by Keshardeo Khemka of having been ever a partner of Central Talkie Equipment Company, no less in view of the frame of the suit, does not fall to be considered the obvious power of a partner to borrow money for the purposes of the firm, or a hundi given by a partner, for the money so borrowed, binding the firm. What falls to be considered instead is the manifest liability of the maker (Keshardeo Khemka), other things being there the manner in which he described himself:

For Central Talkie Equipment Company Partner,

signing himself in between, is nothing but a description and a false description, as he himself now admits. Even a true description by Mohan Lal, the drawer of 14 hundis for Rs. 2,500 each, totalling Rs. 3.5,000, of his status, as "Acting Superintendent of the Private Treasury of His Excellency Sir Maharaja, the Prime Minister of H.H. the Nizam", was dismissed by Lord Buckmaster, delivering the judgment of the Board in Firm Sadasuk Janki Das v. Sir Kishen Pershad (1919) ILR 46 Cal. 663 : AIR 1918 P.C. 146, as "nothing but a description of Mohan Lal''s position". And "certainly", his Lordship continued, it was "not a signature in the form ''necessary for an agent signing on a principal''s behalf". More so is Here when the description of being a partner is false to the knowledge and on the admission, of the maker (Keshardeo Khemka) who described himself as such.

Thus, it is plain to be seen that the object of foisting upon the Defendant a false claim on the foot of a false-hundi: which he did not make ever, does not simply exist. Indeed, it cannot, because the Defendant himself admits that he had lent his signatures on both the hundis. What else then can the object be? The suggestion to the Plaintiff Balaram Das Agarwalla is that he has been "deliberately suppressing these hundis with an ulterior motive." He turns down the suggestion as "untrue" (q. No. 201). One motive put forward in the preceding question (No. 200) is that the assignment of the hundis, by virtue of which he comes to Court, is entirely false and fictitious. Balaram Das says: It (the assignment) is true. The validity of the assignment forms the subject of a separate issue--issue No. 4. Whether or no the assignment on the foot of which the Plaintiff Balaram Das Agarwalla has raised this action is "entirely false and fictitious will be discussed when I reach that issue. (See paras. 35-39 infra). Can there be any other reason which may lead the Plaintiff to resort to the plea of a sham loss of the two original hundis? It is said:

The original payee in one hundi is Pramila Devi (still alive). The original payee in the other was Dharam Chand Jain (alive at the time of the suit but since dead). Pramila Devi, does not figure as a party Defendant to this day. Dharam Chand Jain was not impleaded either, at least as a pro forma Defendant, when the suit was raised on August 11, 1958. Necessarily, his heirs are not in the suit too to this day. So, if the present suit culminates in a decree at the instance of Balaram Das, said to be an assignee, the original payee Pramila and the heirs of the other original payee Dharam Chand will mulct the Defendant in a decree over again on the basis of the two original hundis which may then come out of their hidy-holes. It is why the sham plea of the loss of the two hundis may very well have been taken.

Certainly, it would have been better if the original payees were impleaded pro forma, so that the litigation could have been heard in their presence and one of them dying, in presence of his heirs, all of whom could have thereby been estopped from making any subsequent claim on the basis of the same hundis. And this is usually done, as Mr. Chakrabarti rightly contends. But when I say this, this is all I can say in favour of the Defendant. Barring this, such an approach on his behalf looks more ingenious than ingenuous. Even this suit was filed on August 11, 1958, when it was all but time-barred. (There again hangs a point more of which hereafter; see para. 43 infra). And it came to hearing only on September 20, 1965, more than seven years after it was instituted. Therefore, making a most generous assumption for exclusion of time in computing the period of limitation for a suit the like of which the Defendant apprehends and assuming it to be not a sham apprehension, the chances of his being faced with such a suit appear to be so remote. And then, Order 7, Rule 16, of the CPC (V of 1908) for "Suits on lost negotiable instruments" or the principle on which it rests appears to have been overlooked. This rule bears:

Where the suit is founded upon a negotiable instrument and it is proved that the instrument is lost and an indemnity is given by the Plaintiff, to the satisfaction of the Court, against the claims of any other person upon such instrument, the Court may pass such decree as it would have passed if the Plaintiff had produced the instrument in Court when the plaint was presented and had at the same time delivered a copy of the instrument to be filed with the plaint.

So, if this suit ultimately end''s in a decree for the Plaintiff, nothing else standing between him and the decree he prays the Court for the principle of this salutary provision about an indemnity, which the Plaintiff suing upon lost hundis is required to give to my satisfaction, will be remembered and will receive effect too. I say: the principle of this salutary provision, because the hundis here have been lost, after they were produced in Court when the plaint was presented. Therefore, Order 7, Rule 16, does not in terms apply. Arid once I take such indemnity, by way of abundant caution, the Defendant will be amply protected against the claims of any other person upon such instruments. Where then remains any scope for the apprehension he nurses? and in all circumstances here, it can hardly be a reason for putting up a sham plea of the loss of the two hundis.

17A. The evidence that I have heard and in particular the evidence of solicitor Goswami, completely satisfies me that the two original hundis have been lost. Nothing that Mr. Chakrabarti urges upon me shakes that conclusion by one jot or one title. But another contention of his remains to be noticed yet. The contention is: Look into the Plaintiff''s evidence on this point. After having handed over the hundis to solicitor Goswami, he had had no chance of seeing them again. A year later, Goswami told him on the telephone that they were not found, in his office. That made the Plaintiff come to Goswami''s office and search for the hundis along with him. But the hundis defied all such search. This is all the Plaintiff says in answer to question No. 48. No record is there of such telephone conversations, nothing to say of a written record evidencing such intimation to the Plaintiff''s. Mr. Chakrabarti is entitled to argue so. But incompetence or laziness must not be equated with untruth. Solicitor Goswami would have acquitted himself better if he had written a letter to his client intimating the Joss of the two hundis. That would have served as a contemporaneous document, Recording the loss. At the same time, if Goswami were a witness of untruth, bent on being unscrupulous, nothing could have been easier for him than to "cook" a letter.

So the inference of the hundis having not been lost does not follow from a consideration as this nor from the Plaintiff''s affidavit of documents affirmed on February 1, 1962. Ex. A. wherein it has been averred, inter alia, that the said two hundis "were last in my possession or power on or about the 1st day of August 1958" when they were made over to Messrs D.C. Dutt and Company, since discovered (D.C. Dutt and Company is Goswami''s old firm). What, else could he have affirmed, the hundis disappearing in the manner they did as noticed?

Then why is so much being said about the hundis having not been lost, when it appears to be clear that the Defendant had inspection thereof, before they were lost and that such inspection was over, his written statement was filed? On or about December 22, 1958, the Defendant took out a master''s summons for further and better particulars and inspection of the relevant documents too within four days from the date of the order Ex. E. There was an order in terms of prayer (1). And accompanied by a clerk of hisattorney, the Defendant came to the office of the Plaintiff''s attorney for inspection of the two hundis. But no inspection was given, as the Defendant would have me believe. He would have me believe a little more. He cannot remember if this fact of inspection having been withheld was mentioned by his attorney in any of his letters. Then, he switches off to something different. His attorney did write a letter to the Plaintiff''s only to he informed that the hundis were missing, whereupon his attorney sent him a letter which howerer has not been disclosed. Keshardeo Khemka would not say as much. He would say instead about the disclosure of such a letter: "Not to my knowledge but to the knowledge of the attorney". (See qq. 138-142 to the Defendant Khemka). One more specimen of an untruth. Asked about the order of the Court directing him to file his written statement a fortnight after the inspection and particulars were given, Keshardeo says: "It may be so". (See q. No. 143). And the written statement was in fact filed on March 17, 1959. From such evidence, the following may be deduced: one no disclosure has been made of the Defendant''s solicitor''s letter informing the Defendant of the communication by the Plaintiff''s attorney of the hundis having been lost, as the Defendant speaks of, for the simple reason that he had had no such letter. Two, inspection of the two hundis there was refusal to give inspection (the Defendant alleges first time from the witness-box) appears to be palpably false. Violation of the Court''s order in such a cavalier fashion would have had serious repercussions borne out by suitable evidence to that end in the* shape of a further application and a further order of the Court. Three, after such inspection, he filed his written statement admitting (i) in para: 1 that "he was compelled to sign the said Hundi" (of June 6, 1955) and (ii) in para. 2 that "the Hundi (of July 12, 1955) was signed by" him. So, signing of the two specific hundis in suit is clearly admitted, though in his oral evidence he goes back upon it, first by saying that he did not remember, even when he was instructing his attorney (early in 1959) for drawing up the written statement, if he had drawn the two hundis in suit on those particular days: June 6 and July 12, 1955 (q. No. 75) and then by being more positive:

So far as my recollection goes, I did not execute these hundis (q. No. 76).

That such evidence, contradicting his own written statement, bears the stamp of falsehood is plain to be seen. More, it only lends assurance to the loss of the two hundis after the filing of the suit--loss which the Defendant, it seems, is out to take full advantage of.

Having regard to all that goes before, I find as facts:

A. that the two hundis have been lost, as stated by solicitor Goswami;

B. that both of them were executed by the Defendant Keshardeo Khemka; and

C. that the one of June 6, 1955, was executed as aforesaid qua partner of Central Talkie Equipment Company, a firm, though on his own admission he was not such partner ever. (qq. 1-7)

This denial of the Defendant that he was a partner of Central Talkie Equipment Company needs a little more notice. The gist of his evidence on the point is this. It is no firm, but a proprietorship concern, of which his grandfather, Gangadhar Khemka, is the sole proprietor and he had little to do with it anytime, just as he says in chief in answer to questions 1 to 7. His cross-examination is, however, almost a revelation. 48 Chittaranjan Avenue is the address where all the family offices of the Defendant, including Central Talkie Equipment Company, are located. After he had left his college, he worked as an apprentice in Central Talkie Equipment Company with a view to learning business, for which however he had had no pocket-money in particular, save that he could draw money, whenever he was in need. But he resided there (48 Chittaranjan Avenue) never, though he used to be there everyday in June-July, 1955, indeed throughout 1955. Still he goes there everyday. But if he had not resided at 48 Chittaranjan Avenue ever, how is it the cause title of his own written statement describes him as "Kesardeo Khemka, residing at 48 Chittaranjan Avenue, Calcutta...?" Asked so, in cross-examination, he is not the man to be put out. He says he does not know if any formal objection was taken to his residence having been described so. Whatever his attorney, to whom he had pointed out the wrong address, thought necessary was done and he perused the written statement drawn up by his attorney on his instructions and signed it. (See qq. 52, 54, 65, 55-57, 71-74 etc). It is difficult to beat Keshardeo Khemka in lying. That such a one will indulge in a little puffing as a partner of Central Talkie Equipment Company (quite a respectable name and housed too at 48 Chittaranjan Avenue, quite a respectable place) with a view to facilitating the loans he needs has little to surprise at.

In view of all such telling circumstances, what does it matter that the Plaintiff Balaram Das does not know of his own whether Central Talkie Equipment Company is a partnership firm or not? In para. 1 of the plaint he no doubt avers that the Defendant drew the hundi of June 6, 1955, as a partner of the firm. Read with a copy of the said hundi annexed to the plaint as ''Ex. A'' (annexure A?), the firm means Central Talkie Equipment Company What is more, such averment is true to his knowledge, as he himself says in the verification part of the plaint. Therefore, what he verifies pro tanto is not true to his knowledge, as it appears from his own evidence which is that the Defendant having drawn the hundi as a partner of the firm is true to the information he had received from Dharam Chand in whom he had a blind faith. (See qq. 52, 57, 95, 150, 156, 183, 204 etc. to the Plaintiff). This sort of a discrepancy between the plaint and the oral evidence of the Plaintiff deserves to be condemned. And Mr. Chakrabarti does condemn it as "false". But for this neither the hundi of June 6, 1955, nor the plaint resting on it to that extent, can go down, if either stands on merits forming the subject of issues other than issues 1 and 2, I am on now. And for all I have set out in the foregoing lines, the finding on issues 1 and 2 must be against the Defendant who, I hold, did execute both the hundis, the first one under the camouflage of a partner of Central Talkie Equipment Company, a firm.

To the third and the fourth issues I now proceed. The burden of the third issue is if consideration passed for the two hundis when they were made. The burden of the fourth one is consideration too, but at the time the assignment came to be made, that is to say, on August 5, 1955. Mr. Panja relies upon Section 118 of the Negotiable Instruments Act, 26 of 1881 and submits: execution of the two hundis having been admitted in the written statement, the Court shall presume, until the contrary is proved, (i) that the two hundis were made or drawn for consideration (vide (a) of Section 118) and (ii) that the Plaintiff Balaram Das, the present holder of the two hundis, is a holder in due course (vide (g) of Section 118). Upon the whole of the evidence, the contrary has not been proved, concludes Mr. Panja. Mr. Chakrabarti contends just the opposite: the contrary has been proved and the presumption rebutted, there having been "enough in the evidence to raise a doubt."

Let the evidence be looked into with a view to finding out which contention should prevail. On the first hundi of June 6, 1955, the Plaintiff''s evidence is that he witnessed its execution and the passing of consideration too (qq. 4, 10 and 11 in chief). Mr. Panja does not appear to be right when he submits that there has been no cross-examination of the Plaintiff on such evidence. Cross-examination there has been. But it has been a barren one. On June 6, 1955, the Plaintiff chanced to be at 1 Sambhunath Mallick Lane where Dharam Chand was living then. He denies the suggestion that Dharam Chand and his wife Pramila were living throughout at 19 Rajani Sen Road in New Alipore. A suggestion simpliciter is hot proof. And here is a suggestion denied. To run on with the Plaintiff''s evidence, while he was with Dharam Chand on June 6, 1966, at 1 Sambhunath Mallick Lane, came there Keshardeo Khemka (the Defendant) whom he had known from before in the � course of his visits once or twice to Central Talkie Equipment Company, accompanied by Dharam Chand. And then in his presence the transaction took place. Dharam Chand did get the hundi executed iii favour of his wife, Pramila. He did not then look into the writing which'' is the hundi. It would not be within the limits of decorum to do so. But he did look into it on August 5, 1955, when and he was purchasing this hundi. Therefore, shown a copy thereof, he can place it; the more so, as he had seen it at the time he filed this suit. He did not act as an eavesdropper and had not, therefore, followed the upshot of the discussions between the lender Dharam Chand and the borrower Keshardeo. But, in the end, that Dharam Chand got a hundi executed in favour of his wife by Keshardeo he had seen. (See qq. 81-88, 93, 89, 90, 96, 97, 91, 92, etc.) I accept this evidence of the Plaintiff, a little of a wind-bag though he has impressed me to be.

In accepting this evidence, I have not overlooked that if the Plaintiff was present on June 6, 1955, he was present at Dharam Chand''s on July 12, 1955, too, when the other hundi was executed. But who Dharam Chand was to him must not be lost sight of Dharam Chand''s younger brother is the son-in-law of his cousin. This relationship apart, he was "thick" with Dharam Chand, so much so that he often visited his residence. Indeed, he had known him from 1932. An intimacy as this grew to such a height that he had a blind belief in him, as noticed in para. 22 ante. (See qq. 16, 127, 15, 17, 126, 56, 95, 150, 156, 162 183, 204 etc.) That such a one would hang on at Dharam Chand''s by paying frequent periodic visits there has little to produce disbelief in the mind of a prudent man. So also his having witnessed the execution of the two hundis within a space of 36 days.

Coming to the second hundi of July 12, 1955, what the evidence of the Plaintiff is, as to the passing of the consideration and its execution too, needs looking into. Keshardeo was once again at Dharam Chand''s for another loan of Rs. 5,000. Dharam Chand this time insisted on an acceptor, quite a natural thing to do in the circumstances. And Keshardeo did-bring Hiralal Agarwalla as an acceptor. Then the transaction was gone through. Keshardeo drew the hundi. Hiralal accepted it. Dharam Chand paid Rs. 5,000 to Keshardeo. All this happened in the Plaintiff''s presence. He had seen Hiralal on two occasions only, once before July 12, 1955, at Central Talkie Equipment Company at 48 Chittaranjan Avenue and another time at Dharam Chand''s oh July 12, 1955. Dharam Chand then spoke about the stranger having been Hiralal. The Plaintiff does not however know where Hiralal lived. (See qq. 14, 18, 20, 98, 99, 101, 104-106, 108, 102, 107 etc.)

Such then is the evidence of the Plaintiff on the passing of consideration for (and execution too of) the hundi of July 12, 1955. Criticism of this evidence goes no further than the Plaintiff''s failure to say how many offices there are at 48 Chittaranjan Avenue, his failure to remember how many-storied the building at "48" is, his ignorance about the number of tenants there are at "48", his lack of acquaintance with the several persons whom he had found seated in Central Talkie Equipment Company, his inability to say if Metropolitan Pictures and Bengal Film Laboratory (Private) Ltd. had their offices in the same room at "48" where Central Talkie Equipment Company is housed, his not noticing the signboard in front of "48", etc. (See qq. 109-111, 114, 119-124). By any standard, this is but a poor criticism of the Plaintiff''s evidence on the passing of consideration for the hundi of July 12, 1955. In reality, it is a criticism of the evidence touching the visit of Central Talkie Equipment Company at "48" by the Plaintiff along with Dharam Chand. Even so, it is poor all the same. Visit of a particular place by one and failure on his part to notice so many details may very well stand together. That apart, he places the location of Central Talkie Equipment Company on the ground-floor of "48", speaks of the two rooms it is in occupation of one in the front and another in the back and fixes the position of "48" at the south-eastern corner of Bow Bazar Street and Chittaranjan Ayenue, one or two buildings away from the crossing. (See qq. 113, 112, 115, 116 etc.) Thus, he shows himself not to be an ignoramus, but quite a knowledgeable person.

Hence, the evidence of the Plaintiff on the passing of consideration, also for the hundi of July 12, 1955, stands. In a way, I have been troubling myself for nothing with the evidence of the Plaintiff on the question of consideration for both the hundis. For, execution of the two hundis being admitted even in the written statement, the onus is undoubtedly on the Defendant to prove the contrary: that no consideration did pass for either of the two hundis. But I am doing no more than meeting the challenge, made by the Defendant, to the Plaintiff''s evidence on the passing of consideration, only to find that the statutory presumption raised by Section 118 of the Negotiable Instruments Act, has been strengthened so much the more by the evidence just discussed and accepted.

I now examine how the Defendant rebuts this presumption, as his counsel thinks he does. The ease the Defendant seeks to make out may first be understood. In the written statement, all he says is that he did not receive any consideration for the two hundis, the earlier of which he "was compelled to sign" (para. 1) and the latter of which "was signed" by him (para. 2 where no allegation even of compulsion is made, as Mr. Panja rightly points out). Developing this in the course of his evidence, he says for one genuine hundi in Dharam Chand''s favour he had to draw, by way of collateral security, 2 or 3 hundis at a time for the same amount, double the amount and sometimes even triple the amount actually received by him. Of course, such additional hundis, if that by way of collateral security, would be without consideration. (See qq. 20-22, 35, 77, 146, for example, to the Defendant.) But nothing like it has been averred in the written statement. True it is, evidence has not to be pleaded, as Order 6, Rule 2 of the Procedure Code prescribes. But this is not evidence. This is a very, very important particular concerning a most reprehensible type of undue influence brought to bear upon a helpless borrower, needing money at any cost, by an unscrupulous lender, if what the Defendant says is true. That being so, it was incumbent upon the Defendant to plead so in his written statement. "In all cases in which the party pleading relies on undue influence, particulars shall be stated in the pleading." This is what Order 6, Rule 4 ibid, (denuded of words not material here) provides for. So, evidence as this of 2 or 3 extra hundis being extorted to serve as collateral security for a genuine one, the insinuation being that the hundis in suit are such, deserves to be summarily rejected. As Viscount Dunedin points out in AIR 1930 57 (Privy Council) , no amount of evidence can be looked into upon a plea which was never put forward.

This is one way of looking at the problem. But there is still another way, a way which may be tried, because it is a notorious fact (of which, say, I take judicial notice) that there are, amongst us, sharks of money-lenders who do resort to the very reprehensible practice the Defendant speaks of. That way is when both parties go to trial on a matter as this, the Plaintiff raising no manner of an objection to the reception of such evidence, at any stage, it is as well I adjudicate upon it, even though no such plea has been put forward. Illustrative of a trial without a plea in the pleadings are the cases, to cite only two, of Rani Chandra Kunwar v. Narpal Singh (1907) L.R. 34 IndAp 27, where the plea of the Plaintiff having been given away in adoption, thereby disentitling himself to inherit, was taken at the trial and not in the written statement and of Nagubai Ammal v. B. Shama Rao AIR 1956 S.C. 953, where the plea of lis pendens was not taken in the plain, but raised at the trial and the parties proceeded on the footing that that was in issue. Indeed, in the latter case, Venkatarama Ayyar J. distinguishes the dictum of Viscount Dunedin as having no application to cases where parties go to trial with the knowledge that a particular question is in issue, though there is no specific issue to that end and adduce evidence relating thereto. J had an occasion to deal with this branch of the law in detail in J.K. and Sons v. Metal Press Works Ltd. Unreported judgment dated 12.12.1965 in Suit No. 1645 of 1962 when rendering my Order on the fixation of an issue.

But the difficulty for the Defendant is that the Plaintiff never goes to trial with the knowledge that the Defendant would be mooting the question of 2 or 3 extra hundis without consideration for a genuine one with consideration, for the purpose of collateral security. He raises it for the first time in the course of his evidence-in-chief (q. No. 20), thereby taking his adversary completely by surprise. So, how will the Plaintiff meet a case as this? Still, let me stretch in favour of the Defendant and see how even the much too belated plea fares, instead of summarily dismissing this sort of evidence of extra hundis without consideration for a genuine one with consideration. Even so, the Defendant''s case appears to be a hopeless one. He is one who had had a business in 1955 in gunny bags in a small way, though he first gives the impression of being a gentleman at large, doing this and that in his father''s business (Metropolitan Pictures), as also in his grandfather''s (Central Talkie Equipment Company), earning no pocket money in particular, but drawing money, whenever required, from his grandfather''s concern, receiving pocket-expenses from his father''s and maintained as a member of the joint family consisting of himself, his brothers, father and grandfather. (See qq. 88, 61, 62, 64, 5, 53, 65, 63 etc.) More, after having come out of the College in 1952, he was carrying on business in Narayanganj in East Pakistan. Then, he parries Mr. Panja''s questions on the volume of his business, the profits earned and the duration of his business, by returning evasive answers and by deliberately not saying anything to the point. But he is good enough to admit later that he was in business in 1954 and 1955, though how long he had carried on business in 1955, he has no recollection of. He admits too, he had books of account which however had to be searched for, adding that he is unable to produce such accounting book on the day following, as they are scattered far and near; many at Varanasi, many in his native place at Ratangar and many at Ranchi. He has to ascertain where exactly his books are, paucity of space in Calcutta having squeezed out his books, no less the books of his family, from here to places outside. And his is a business which runs to this day. (See qq. 48, 90-94, 96 95, 97-101, 109, 110, 112, 49 etc. to Keshardeo.) But such tall talks of his books of account having been stored so out of Calcutta goes ill with what he himself had affirmed on June 15, 1962, in his affidavit of documents filed in Court on June 28, 1962: Ex. D. The third paragraph thereof contains an unequivocal statement by him of never having had in his possession, custody or power, or in the possession, custody or power of his pleader, agents or any other person on his behalf of books of account "relating to the matters in question in this suit". Confronted with this, he reiterates what he had affirmed in his affidavit of documents, but not in that convincing manner:

Q. No. 106. Would you look at para. 3 you have stated that you were never in possession or custody of any books of a/c?/ It may be that in connexion with this matter there were no books of a/c.

It may be evinces nothing like that emphatic tone one comes across in his affidavit of documents: to the best of my knowledge, information and belief I had had never such books of account in my possession or in possession of anybody else on my behalf. Soon he gathers strength and rallies, to return to the convincing note in the third paragraph of his affidavit of documents. Asked if there was any entry in his accounting books on the payments made by him on account of the hundis in suit, he answers:

"Since I have received any money, how will there be an entry with regard to the repayment?." (Q. No. 107).

Let this answer be tested. The hundis in suit are not the only transactions he had had with Dharam Chand no matter now whether these two hundis are genuine or sham. At least there were some 7 or 8 such transactions even in 1954 or 1955 when the Defendant did receive money on loan from Dharam Chand and repaid the loans too. More, Dharam Chand was living then at 19 Rajani Sen Road near Russa Road and not at 1 Sambhunath Mallick Lane where Keshardeo had never been "in my life" and which he says he does not know even. The last of such transactions was in the early part of 1955. Keshardeo will not come beyond that; June 6 or July 12 of 1955 will not be the early part of 1955, but the middle thereof and a little beyond too. (See qq. 17, 83, 119 and 42-41). First, Keshardeo says, for such borrowings, he had to go in for, not from Dharam Chand alone, to meet his personal and business requirements as well he maintained neither books of account nor any note (qq. 83-87). But later he admits, the amount of loan taken and the investment made by him in his personal business should appear in his books of account; he has however "no exact recollection" of "what happened long age". At the same time, he is sure, if payment has been made (received) for the hundis in suit, if receipt of money has been entered in the books of account, then of course repayment will appear therein/too (q. No. 102). A little later, he eliminates "if" and gets surer till about the amount actually taken by him from Dharam Chand:

With regard to the payments which were actually received, there should be entries in the books of a/c.

taking care to add, with a view to preventing his evidence from receiving full effect--

"But it happened a long time back and I can give you the correct answer after making searches into the books of a/c. At present I do not know for certain. I have to make searches for that." (Q. No. 108)

Such borrowings from Dharam Chand were no more than Rs. 2,000 or Rs. 3,000 at a time, totalling Rs. 8,000 to Rs. 10,000, a little more or a little less, as he says by guess (qq. 121-126). 7 or 8 transactions with Rs. 2,000 or Rs. 3,000 at each would make a total of Rs. 14,000 to Rs. 24,000. But money taken so far each transaction has been repaid in full (qq. 119 and 120). Let one more answer of Keshardeo be noticed:

To Court:

Q. No. 118. But whenever you received any amount from Dharam Chand Jain by way of loan, that amount was entered in your books of a/c?/ That should be.

It is now time to ask: why do you withhold such books of account then? They would have at once shown what''s what. They would have shown, for example, (i) the address of the lender Dharam Chand: 1 Sambhunath Mallick Lane or 19 Rajani Sen Road, (ii) the total amount he had borrowed, (iii) the dates when he had borrowed so (iv) the dates when he had repaid the sums so borrowed etc. And whether or no the hundis in suit were there would have been found out too. Absence of entries on these two hundis in Keshardeo''s books of account would have gone some way at least, if not a long way, to prove what he is out to. No doubt, if one has to go by Section 34 alone of the Evidence Act 1 of 1872, it makes an entry in a book of account relevant, the necessary corollary being that the absence of an entry does not, per se, make such book relevant, to disprove the transaction not entered there. But Section 34 is not the only section. There are other sections as well, such as Section 5 providing that, on non-existence of a fact in issue, evidence may be given, Section 9 making facts necessary to explain a fact In issue or relevant facts, themselves relevant and also Section 11 making relevant those facts not otherwise relevant (i) if they are inconsistent with any fact in issue or relevant fact and (ii) if by themselves or in connexion with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable. Statutory prescription of this manner apart, such is the law laid down by Mudholka J, speaking for the Court, in the State of Andhra Pradesh Vs. Cheemalapati Ganeswara Rao and Another, : non-existence of an entry in an account book is relevant under Sections 5 and 11 of the Evidence Act, the value to be attached to that being another matter. Such is the law laid down too by the Privy Council in Imambandi v. Haji Mutsaddi (1918) 45 I.A. 73 : ILR Cal. 878 : AIR 1918 P.C. 11, the absence of entries in bahis (accounting books) is relevant, though what effect that would have in consideration of the general evidence is another matter.

Thus, absence of entries in the books of account on the two hundis in suit would have been an important factor to be taken into reckoning. And still Keshardeo withholds such books of his. I may therefore presume, as I do, in safety, that were they produced before me, they would not have supported his case. And the less said about his oral evidence, the better. He has impressed me as a wholly unreliable witness. And I have given sufficient indications of that in the foregoing lines. Relying on such evidence, unsatisfactory to a degree, no prudent man can ever bring himself to find coercion, undue influence and the like. It is interesting to observe that while, in the written statement, the Defendant alleges compulsion, only so far as execution of the first hundi is concerned, in his oral evidence he will feign lack of memory and cannot therefore say if he had signed the particular hundi. (See qq. 159-161: also para, 19 ante.)

To sum up, the Defendant is not even entitled to be heard, strictly speaking, on his belated plea by implication that the hundis in suit were executed only by way of collateral security without any consideration having passed therefor. Then, even if I stretch in his favour and weigh this sort of a plea, as I have done, though it means stretching to the breaking point, the finding of fact, upon the whole of the evidence, must be as indeed it is--that consideration did pass for each of the two hundis in suit.. Mr. Panja''s contention prevails over Mr. Chakrabarti''s. And it is held that the presumption raised by Section 118(a) of the Negotiable Instruments Act, far from being rebutted, is strengthened all the more, upon the whole of the evidence.

Coming to the assignment of the two hundis in suit on August 5, 1955, as pleaded in the 4th paragraph of the plaint and deposed to by the Plaintiff Balaram Das, in answer to questions numbering 21-24, 36-41 etc.--the consideration for such assignment was Rs. 9,500, the total value of the two hundis coming at the date of the suit to Rs. 10,000 (principal) plus Rs. 1,775 (interest)--the Defendant again is up against the presumption raised this time by Clause (g) of Section 118. Here is the Plaintiff who is the holder of the two hundis in suit within the meaning of Section 8. Because of the indorsement at the foot of each--in one the indorsement is by Dharam Chand as the constituted attorney of his wife Pramila and in another the indorsement is by Dharam Chand himself--the Plaintiff Balaram Das is one who is entitled in his own name to the possession of each such hundi and to recover the amount due thereon from the parties thereto. The tests Section 8 prescribes are satisfied. And the Plaintiff becomes the holder of each of the two-hundis. So soon as that is said, u/s 118(g) the presumption shall be made, until the contrary is proved, that, of both the hundis, payable to order, such a one as the Plaintiff is a holder in due course, an expression which means, as defined in Section 9 that the Plaintiff is the person who for consideration became the indorsee thereof. This then is the Plaintiff''s position at law, as Mr. Panja submits.

Mr. Chakrabarti seeks to dislodge the Plaintiff from such a position on two grounds: First: the power of attorney by virtue of which Dharam Chand indorsed the first hundi of June 6, 1955, as the constituted attorney of his wife Pramila in favour of the Plaintiff has not been disclosed, with the result that there can be no decree thereon. Secondly: enough is there to raise a doubt about the passing of consideration for the assignment on August 5, 1955, such as non-availability of the account books of the Plaintiff, Rs. 9,500 being the money of his wife who is not examined, payment of Rs. 9,500 not on August 5, 1955, but on the clay following etc.

None of these grounds can prevail. I do not think much of Balaram Das''s evidence (qq. 22, 141-152, for examples) that he had seen the power of attorney by Pramila in favour of her husband Dharam Chand. What counts is my seeing. And I have not seen it. The Plaintiff could not have disclosed it, though Mr. Chakrabarti makes a point of such non-disclosure. Because it is not his document. Nor is it in his power and control. Still he might have taken out a summons for production of the power of attorney, the best evidence on the point. The Plaintiff''s oral testimony of its contents hardly condescends to any detail. Even were it full thereof, that would have by no means been admissible as secondary evidence, the primary evidence in the shape of the power of attorney being said to be still there and at any rate, its non-availability being not proved. Furthermore, it needs remembering, as Mr. Chakrabarti rightly argues, that an authority to draw bills of exchange does not of itself import an authority to indorse: Section 27. So, the exact terms of the power of attorney have got to be known. And almost next to nothing is known thereof. I therefore do not proceed that way on the basis of the power of attorney. Indeed, I cannot, the evidence being what it is. I proceed instead on the basis of implied authority of the agent which the husband (Dharam Chand) was of his wife (Pramila). Upon evidence, I find: here is the Defendant Keshardeo who took Rs. 5,000 of Pramila from her husband Dharam Chand on June 6, 1955 and executed the hundi, not in his favour, but in favour of Pramila. (See, for example, q. No. 133 Balaram Das) I can, therefore, infer the authority of the husband qua agent to advance the money he did on behalf of his wife and principal, Pramila. In the endorsement of August p. 1955, I see the same authority. No mala fide is to be seen anywhere nor severance of the matrimonial home, just as severance of the joint family status put an end to the representative capacity of the manager of a Hindu joint family in Pramod Kumar Pati and Another Vs. Damodar Sahu and Others, , a ease Mr. Chakrabarti cites. So, what the husband did on August 5, 1955, binds the wife who has not repudiated her husband''s act all these years. I see in such conduct a tacit ratification by her of what her husband had done by indorsing the hundi. Even if the husband had exceeded his authority as agent (of which I see little evidence), that cannot affect the Plaintiff, a bona fide holder for value of the first hundi of June 6, 1955, as he is.

This is how I find absence of the power of attorney incapable of standing between the Plaintiff and his successor, if otherwise due. The solution Mr. Panja suggests by referring me to the special rules of evidence embodied in Sections 120 and 121 of the Negotiable Instruments Act cannot possibly help. Section 120 estops the drawer of this hundi (as the Defendant Keshardeo is) from denying, in the present suit thereon by the holder in due course (as the Plaintiff Balaram Das is), the validity of the instrument as originally drawn, that is to say, on June 6, 1955. But the assignment I am on now was 60 days after that, namely, on August 5, 1955. If anything, it only lends assurance to the conclusion I have come to in para. 34 ante of consideration having passed for both the hundis on the dates they were originally drawn and that too upon a review of the whole evidence which I could not very well have done without, with a view to satisfying myself that the suit I am seized of is a suit by a holder in due course. Similarly, Section 121 estops the Defendant from denying the payee Pramila''s capacity, at the date of the hundi, to indorse the same. What the Defendant denies is not her capacity, but her husband Dharam Chand''s instead; more, not at the date of the hundi, but at a date 60 days later. No doubt, by virtue of the provisions in Section 16(2), I must read "indorsee" for "payee" in Section 121. Even then I remain where I was. The Plaintiff is the person specified in the indorsement by Dharam Chand, the indorser of each hundi. The Plaintiff is therefore the indorsee: Section 16(1). But his capacity to indorse and that too at the date of the bill, is not at issue here. So, Section 121 does no duty to him. Be that it may, in view of the clear implied authority of agent which I see in the husband Dharam Chand, the first ground Mr. Chakrabarti presses upon me, because of the absence of the power of attorney, fails.

Equally, if not more, ineffective is his second ground. For one thing, I refuse to rest my finding on a doubt. Mr. Chakrabarti does not place his submission any higher than that. For another, I see little to doubt even the Plaintiff''s evidence on payment of Rs. 9,500 as the price for the two hundis. Out of Rs. 18,000 his wife had amassed on account of moneys received by her, from time to time, from her father, mother and also from him, she had put him (her husband, the Plaintiff) in fund to the extent of Rs. 9,500 to buy these two hundis. She had this sum in cash without a note anywhere in any paper or record. (See qq. 70-74). What is there to disbelieve it? There are people who hoard money so. And a stranger like the Defendant is a singularly unfit person to assail such evidence. The Plaintiff''s wife is not examined, though she lives to this day in her matrimonial home at 23 Garanhatta Street (q. No. 75). Had she been examined, she would have been the Plaintiff''s wife all the same. If I believe the Plaintiff, as I do, non-examination of his wife matters little. In spite of the money (Rs. 9,500) paid by the wife, the assignment of each hundi has been in the name of the husband (q. No. 76); what the wife said to the husband is hearsay, so long as the wife is not examined. So what? That is a matter between the two spouses into which the Defendant had had better not pray. And then why underestimate the importance of a husband in a family the like of which is the Plaintiff''s? True, the assignment was on August 5, 1955 and Rs. 9,500 was paid by the Plaintiff to Dharam Chand on the day following (qq. 153, 154 and 203). Once the relationship between the two, the Plaintiff Balaram Das and Dharam Chand, is borne in mind, there is little in it to be poohpoohed. Again, because of blind faith in Dharam Chand, the Plaintiff did not hesitate to buy the hundis, though he had known little about Keshardeo and Hiralal (q. No. 162). If he rushes headling for a bad deal, for the sake of one whom he reverses blindly, it is his business, neither mine nor the Defendant''s far less. At all events, a consideration as this does not disprove the assignment. The Plaintiff''s books of accounts of his quondam hosiery business, in a flourishing condition in 1955, are not available now, destroyed as they have been (qq. 66-69 etc.). But from that the inference does not follow that the assignment of the two hundis has been a sham. It will be a profitless task to deal with such considerations any more, though all that is in evidence has been weighed. From evidence, let me come to pleadings. In the 3rd paragraph of the written statement all that the Defendant traverses, in answer to the 4th paragraph of the plaint (averring assignment), is that he has no knowledge thereof. Not that he challenges it Thus upon the whole of the evidence, no less upon the pleadings, 1 find as a fact that the Plaintiff is an assignee for valuable consideration of the two hundis in suit.

I therefore find the third and the fourth issues in his favour.

The fifth and the sixth issues are now reached. The fifth one raises the question of the assignment on August 5, 1955, of the two hundis in suit having been notified by the Plaintiff to the Defendant. The sixth raises the questions of presentation of the said two hundis--the first one to the Defendant who is the drawer and acceptor both thereof and the second one to Hiralal, the acceptor thereof, on due dates and dishonour of each by non-payment.

Notice of assignment by the Plaintiff to the Defendant appears to be manifest upon evidence. The day following August 5, 1955, when the Plaintiff had bought these two hundis, he sought the Defendant and met him only to tell him this: ''Look here, I have purchased the hundis. So, pay me on due dates.'' The maturity of the second hundi of July 12, 1955, payable 30 days from that date (July 12), without days of grace, is the date at which it fell due: Section 22. So, the date at which it fell due was August 11, 1955: para. 10 ante. Two days before this date, that is to say, on August 9, 1955, he had seen again the Defendant Keshardeo who pleaded for and got, extension of time for payment. And the Defendant took time so on 6 or 7 occasions more when the Plaintiff had called on him. (See qq. 25-27, 42, 43 etc. in chief to the Plaintiff Balaram Das.) The Plaintiff reiterates and elaborates such evidence in his cross-examination. He had made periodic demand for such payment: first at an interval of 8 or 10 days and thereafter at an interval of about 15 days. This continued for 3 or 4 months beyond which no further demand was made, save that on one occasion Keshardeo and he had met one another on the road resulting in a renewed assurance from Keshardeo that the payment would be made. No letter was written to Keshardeo calling upon him to make the payment. What is more, Balaram Das had rested on his oars throughout 1956, 1957 and the greater half of 1958 till he filed this suit on August 11, 1958, without having seat a prior letter of demand by his solicitor, for which again he has no 1 nation to offer. (See qq. 163-178 in cross-examination). Grant all this Mr. Chakrabarti elicits in cross-examination of the Plaintiff Balaram Das and presses upon me. Still all you can say is that Balaram Das is somewhat of an unusual type of a litigrant who leaves two "laze" for some two years and a half preceding the institution of his suit, inflicting no letter of demand upon his debtor (by assignment) either himself or through his solicitor. The plain meaning of unusual, in the context, is not often happening. Not often happening does not however mean happening never. It is Balaram Das''s pleasure that he does as he did. No two litigants are alike. If one may love to rush to Court soon enough, another may love to procrastinate. And what the Court does is to weigh the merits of the litigation as much for the fleet-footed as for the slow-footed. So, only because of all this, it can by no means be said that his claim is false, that he is not an assignee for valuable consideration, or that he had not made periodic demand for payment of the hundis throughout the first three or four months after the assignment in his favour on August 5, 1955.

It is again said and certainly that may be said, that he deferred the commencement of his suit till it was all but time barred, a practice which Lord Sumner condemns as "indefensible" in AIR 1925 83 (Privy Council) . Speaking of the "country cases", his Lordship finds such practice "so deeply rooted that it is useless to protest against it" and continues:

but it is with equal surprise and regret that their Lordships notice the extension of this evil practice to mercantile transactions in Calcutta.

I share, if I may, with the greatest respect such surprise and regret given vent some 42 years ago. Indeed, my regret mingled with surprise is greater still, because to the near-three-year delay in postponing the institution of the suit has been added a delay of some seven years in bringing the suit to hearing Still I know no principle of dismissing the suit only on this ground, instituted though it has been within the period of limitation which it is not for me to abridge by throwing put a suit filed late. Still less do I know of any principle of disbelieving the Plaintiff''s evidence of periodic demand by him of the money from the Defendant, solely on this ground. Were the Plaintiff speaking of the nuances of a mercantile transaction, I would have been prepared to hold that the in travel of ten years and a little more would dim the definiteness with which he could depose thereto. He was speaking instead of the broadcast of the broad facts: that he continued demanding the money due on the hundis for the first three or four months after the assignment. Even years would not dim the memory of only this much. Opposed to such evidence of the Plaintiff is that of the Defendant who characterises such, periodic demand by Balaram Das as "absolutely false". But he does not stop with this stimulating as expression. He hastens to add:

Before this day (September 20, 1965) I had not seen his face ever: q. No. 11

He is protesting much too much. The type he is has been noticed Devotion to truth is not one of His strong points. Inspection of the hundis he had had, before filing his written statement, as my finding is. (See para. 19 ante). Still all he could aver on assignment was his lack of knowledge thereof, as also denial of the giving of the notice thereof: para. 3 and that too in answer to the averment in the fourth paragraph of the plaint which bears inter alia:

Notice of the said assignments were (?) duly given by the Plaintiff to the Defendant.

So, if he had not seen the Plaintiff ever, if periodic demand which, in the context, means notice of assignment too, is ''absolutely false'', it was the worst type of fraud sought to be perpetrated on him. Yet he does not state this most telling particular that he had not seen the face of the Plaintiff ever. Fraud apart, it is a particular (as distinguished from evidence) so "necessary beyond such as are exemplified in the forms" referred to in Rule 3 of Order 6 of the Procedure Code. So, it was incumbent upon the Defendant to state this in his pleading under Rule 4 ibid. First and last, after having seen and heard both the Plaintiff and the Defendant, I am completely satisfied about the truthfulness on the part of the former and utter lack of it on the part of the latter. I therefore find as a fact that the Plaintiff did make a periodic demand of the money due on the hundis, before and after it was due, as stated by him. I find as a fact too that the Defendant pleaded for time, upon each such demand after maturity, for making the payment.

From the facts just found, two conclusions follow. One, the notice of assignment of both the hundis was given by the Plaintiff to the Defendant. It need hardly be said, no particular form of notice is necessary. To tell the Defendant, as the Plaintiff did tell him: "Look here, I have purchased the hundis payment for which has to be made to me", appears to be a good enough notice. Two, the Defendant, on demand, did promise to pay the amount due on the hundis in full. That constitutes too a good enough presentment which surely does not connote that every time the holder demands payment of the drawer, he will have to flourish the hundi.

The second conclusion comes to in the preceding paragraph is dovetailed with the question of presentation (or rather lack of it) of the second hundi of July 12, 1955, to Hiralal, the acceptor thereof. The Plaintiff, as noticed in para. 26 ante, had seen Hiralal only on two occasions, once on July 12, 1955 and another time before it. So, it is plain that no presentment of the second hundi could be made to him by the Plaintiff after the assignment in his favour on August 5, 1955. This fosters Mr. Chakrabarti''s contention that, under the combined effect of Sections (sic) and 64 of the Negotiable Instruments Act, the drawer, the (sic) me, cannot be mulcted in a decree for the second hundi. Without more, the position appears to be so. The liability of the drawer (as the Defendant is) for the second hundi arises, in case of dishonour by the acceptor (here Hiralal), due notice of such dishonour having been given to him (the drawer): Section 30. Here no presentment even was made to Hiralal. Again, there being no contract to the contrary, Hiralal, the acceptor, is liable, after acceptance by him, as the principal debtor and the Defendant, the drawer, only as a surety: Section 37. Furthermore, a bill of exchange (the 2nd hundi here) must be presented for payment to the acceptor (here Hiralal); in default, the drawer (here Keshardeo) is not liable thereon to the holder (Balaram Das): Section 64. At the risk of repetition, without more, the position, it is plain, appears to be so: just what Mr. Chakrabarti contends for. But Mr. Panja contends that there is a lot more here, namely, Section 76 which bears, in so far as Mr. Panja relies upon it,

No presentment for payment is necessary and the instrument is dishonoured at the due date or presentment in any of the following cases:

* * * * * *

(c) as against any party if, after maturity, with the knowledge that the instrument has not been presented--he promises to pay the amount due thereon in whole...or otherwise waives his right to take advantage of any default in presentment for payment;

(d) as against the drawer, if the drawer could not suffer damage from the want of such presentment.

That the drawer, Keshardeo, promised to pay the whole amount due (on the second hundi) and after maturity too, has been noticed. (See paras. 42 and 43 ante. To say: "Pray, give me a Utile time to make the payment", comes to promising to pay the amount in whole. That is not the question which confronts me now. The question that confronts me is: had Keshardeo then the knowledge that the second hundi was not presented to Hiralal? No such knowledge, no waiver under Clause (c) of Section 76. Upon the whole of the evidence, I find here not direct and positive waiver, but an implied one. Periodic demands, running into six or seven, continued for three or four months. And on every occasion after maturity say, the occasions then dwindled to four or five: two before maturity and the rest after--Keshardeo pleaded for extension of time to make the payment. Not once he said: "Why come to me? Go to the acceptor." From such conduct, an implied waiver may reasonably be gathered. Again, a little delay after maturity, in violation of Section 66, exempts others, but not the maker as the Defendant is: one who is primarily liable.

On a consideration as this, I should accept Mr. Panja''s (sic) that Section 76(c) is attracted, thereby rendering unnecessary (sic) to Hiralal, the acceptor. Because the waiver of such presentment, I find, is thus clearly implied. Clause (d) is attracted all the more if all that Keshardeo says about Hiralal is true. And what does he say? He does not know Hiralal about whom he has no knowledge whatever. Whether Hiralal is a fictitious person or not he does not know. Necessarily, he has no fund either with Hiralal. (See qq. 149 et seq.). Therefore, if he makes the payment, he cannot suffer damage from the want of such presentment. In making the payment he does not burn his candle at both ends. At the same time, it is not necessary that the acceptor must in all cases be placed in fund by the drawer, in advance. Hiralal may look for funds from Keshardeo for reimbursement when he holds no fund of the drawer (Keshardeo) at the time of payment. (See the speech of Lord Herschell in Bank of England v. Vagliano Brothers (1891) A.C. 107 at pp. 147, 148. But that stage is long past and can never, never come to pass in future. So there is no possibility even of the drawer Keshardeo suffering damage. That is not the Defendant''s evidence too. In the words of Section 76, with reference to Clause (d), no presentment for payment of the second hundi of July 12, 1955, (payable within 30 days, without days of grace) was necessary and it was dishonoured at the due date for presentment, to wit, on August 11, 1955, vide Sections 22, 24 and 66, as against Keshardeo, the drawer, because he could not suffer damage from the want of such presentment. And if Hiralal is treated as a fictitious person, since he is disowned by none else than Keshardeo whose hundi over his admitted signature Hiralal accepted, presentment recedes into the background all the more. Because, who has ever heard of a hundi being presented to and demand being made of, one who does not exist? I am clear however, I cannot treat Hiralal as a fictitious person. Inherent absurdity apart, upon the whole of the evidence, I accept the Plaintiff''s testimony that Hiralal is a real person whom he had seen accepting the second hundi on July 12, 1955 and also on another occasion before July 12. (See para. 26, 27 and 45 ante). I, therefore, reject the Defendant''s evidence that he does not know Hiralal. At the same time I accept his evidence that he had not put Hiralal in fund ever. I therefore reiterate my conclusion that no damage he could suffer for want of presentment of the second hundi to Hiralal and that no presentment to him was accordingly necessary u/s 76(d).

Mr. Chakrabarti will not let such an approach pass by without making the forcible comment (he does) that it is so inconsistent with the averment in the plaint''s 6th paragraph which bears:

...The said second hundi was also duly presented to the said Hiralal Agarwalla on the due date and was also dishonoured by nonpayment.

Mr. Chakrabarti is right. The inconsistency he complains of is plain to be seen. Will the Plaintiff''s suit, in so far as it is founded upon, the second hundi, therefore come to shipwreck, only for this? That is the question. And not an easy question, because what the Court is called upon to do in cases of this type, is to perform a balancing feat between substance and form. To quote Viscount Haldane in Mensa Akuamankra v. Paul AIR 1918 P.C. 312 decided on July 12, 1917 and come into the reports in 1918:

...their Lordship''s principle is to do justice according to substance as well as to form....

The Appellant before their Lordships did not appeal in time to the Court of Appeal which therefore refused to entertain the appeal. That was the question of form. After hearing arguments, their Lordships were not satisfied that the Judge who tried the case had come to a wrong decision. No strong prima facie case there was to that end. Had there been any, a remit would have been ordered. That was the question of substance. And their Lordships did justice "according to substance as well as to form" by dismissing the appeal.

What do I find here? According to form, the Plaintiff must be made to stand by his averment in the plaint''s sixth paragraph that the scond hundi was presented to Hiralal, an averment which the Defendant denies in the written statement''s fifth paragraph. According to substance, this denial is true and admitted by the Plaintiff to be true. According to substance, a little more stands out as true: that the Defendant had never placed Hiralal in fund to this day, (as he himself admits), thereby rendering presentment of the second hundi to Hiralal (made so much of) unnecessary. This being his unequivocal and undiluted admission, it is not for him to turn round and say: "a development as this at and during the trial takes me by surprise". Indeed, to say so will be to cause the greatest surprise and to put a premium on naivete.

This then is the balance-sheet I make of form and substance. Placed as I have been, wrestling with the requirements of both, form and substance, the case of Srinivas Ram Kumar Vs. Mahabir Prasad and Others, , is apt to come to my mind. There the Plaintiff''s was a suit for specific performance of a contract simpliciter. The defence of the Defendants (said to be a party to the contract) was: "contract never; but we did take a loan of Rs. 30,000 carrying interest at 6% a year." It was however no part of the Plaintiff''s case in the plaint that Rs. 30,000 was advanced as loan to the said Defendants. Upon this state of pleadings, supplemented by evidence at the trial, the subordinate Judge dismissed the claim for specific performance, but gave a decree for Rs. 30,000, on the admission of the Defendants concerned. The High Court reversed the subordinate Judge, no case of a loan having been made out in the plaint and was reversed by the Supreme Court. Mukherjea J. (as his Lordship then was), speaking for the Court, observed:

...the decision of the trial Court was right and...the Court took an undoubtedly rigid and technical view in reversing this part of the decree of the Subordinate Judge.

Again,

The rule undoubtedly is that the Court cannot grant relief to the Plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the Plaintiff could have made, was not only admitted by the Defendant in his written statement but was expressly put forward as an answer to the claim which the Plaintiff made in the suit, there would be nothing improper in giving the Plaintiff a decree upon the case which the Defendant himself makes. A demand of the Plaintiff based on the Defendant''s own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the Defendant on his pleadings.

Translating the principle of this decision to the case in hand, I find

A. Here also the Plaintiff could have made an alternative case that Hiralal was never put in fund, rendering thereby presentment to him unnecessary.

B. Hiralal never having been put in fund is admitted on oath by the Defendant for whom it is not, therefore, open to plead surprise.

C. Is admitted too, but by the Plaintiff on oath, want of presentment to Hiralal: just what the Defendant pleads is para. 5 of his written statement.

D. Not a paisa has been repaid by the Defendant for Rs. 5,000 he had taken on loan by the second hundi.

E. There would, therefore, be nothing improper in giving the Plaintiff a decree upon the evidence the Defendant himself gives of having never put Hiralal in fund, which, in the context of facts here, necessarily means that he can suffer no damage for want of presentment of this hundi to Hiralal.

True it is that Sriniwas Ram Kumar could have instituted, for recovery of the loan of Rs. 30,000, a separate suit which the Supreme Court did not drive him to, no injustice as that would cause, in the circumstances, to his adversaries. The way to relief by a separate suit appears to be barred against the Plaintiff before me. But no injustice I see to the Defendant before me, unless forcing him to pay what he is bound to is regarded as synonymous with injustice. More, the facts of no two cases are alike. What is to be searched for is the principle. And the principle I govern myself by, in the wake of Sriniwas Ram Kumar''s case (Supra), is that a Court of justice never makes a fetish of form in the shape of pleadings when it can grant relief to the Plaintiff and prevent the Defendant from fleeing a mainfest liability writ large on him, on the basis of an admission the Defendant himself makes under oath. Once the principle is that and it can be nothing short of that, in all circumstances here--the Plaintiff is bound to get the decree he prays the Court for, even on the second hundi.

And this is the conclusion I have come to, in full consideration of the three cases Mr. Chakrabarti cites: Eshenchunder Singh v. Shamachurn Bhutto (1866) 11 M.I.A. 7, Hiralal Chatterjee v. Giribala Debi (1916) 23 C.L.J. 429 and Deoki Nandan Vs. Murlidhar, . In Eshenchunder''s case (1866) 11 M.I.A. 7, the plaint rested on a distinct agreement between the Plaintiff and his two brothers, Koilas and Eshen, joint purchasers and joint owners of a certain lease. That being so, what Lord Westbury deprecated was the High Court taking it "that Koilas was nothing more than the Agent of Eshen"--a conclusion "devoid not only of allegation, but also of evidence in support of it." In the case in hand, Hiralal having never been put in fund is certainly devoid of allegation, but stands solidly on the evidence of none else than the Defendant. In Hiralal Chatterjee''s case (1916) 23 C.L.J. 429, Sir Ashutosh Mookerjee, delivering the judgment of the Court, notices the decision just noticed, amongst others, reiterates the double purpose behind the rule of the allegations agreeing with proof:

First, to apprise the Defendant, distinctly and specifically, of the case he is called upon to answer, so that he may properly make his defence and may not be taken by surprise and secondly, to preserve an accurate record of the cause of action as a protection against a second proceeding founded upon the same allegations,

and concludes:

We cannot consequently hold that every variance between pleading and proof is fatal; we must carefully consider whether...the objection is one of form or substance.

This appears to be destructive of Mr. Chakrabarti''s contention that every variance between pleading and proof is fatal. Then, the Defendant''s own admission being here and it is upon that I rely, the first purpose behind the rule of pleadings and proof cannot avail his client. The second purpose is well achieved by this judgment. On top of all this, the Plaintiff claimed there one-third of the disputed property, but got one-sixth. The greater includes the less and to deny her that much because of the supposed infraction of the rule of pleadings and proof is to bring the rule itself on the verge of ridicule and absurdity. In Deoki Nandan Vs. Murlidhar, , Venkatarama Ayyar J. found "the view of the lower Court that the temple must be taken to be dedicated to the members of the family" going "beyond the pleading" which, contained no more than this: "the Thakurdwara and the idols were private and more which was "not supported by evidence in the case." It is so unlike the case before me where Hiralal having not been put in fund by Keshardeo, though not in the pleading, is supported by Keshardeo''s own evidence.

Having regard to the foregoing considerations, I answer the fifth and the sixth issues as under:

Issue No. 5. . . . Yes. (See para. 41-44 ante.)

Issue No. 6. . . . Yes; the first hundi was duly presented to the Defendant a little after due date and dishonoured by nonpayment. No; the second hundi was not presented to Hiralal the acceptor. But no such presentment was necessary; and the hundi was dishonoured at the due date for its presentment by operation of law (Section 74) coupling with facts found. (See para. Section 44 (sic) seq.)

The seventh issue merits the finding that the Plaintiff is entitled to reliefs set out below.

In the result, there must be judgment for the Plaintiff in terms of prayers 1 and 5 of the plaint. Interest of 6% per annum on Rs. 10,000 from the date of the suit to the date of the decree. This is however subject to the condition, for reasons set put in para. 17 ante, that the Plaintiff do give, by February 28, 1966, an indemnity, for Rs. 14,000 (fourteen thousand), to the satisfaction of the Registrar of the Court on the Original Side, against the claims of any other person upon the two hundis in suit. Should he herein fail, the suit shall be deemed to have been dismissed with costs.

Certified for two counsel.