Haricharan Pandey vs Jamuna Lal and Another

N.L. Untwalia, J.—The petitioner in this case is the first defendant, who had executed a handnote in favour of defendant No. 2--opposite party No. 2. The latter assigned the hand note to the plaintiff-opposite party No. 1, who ultimately filed a suit for realisation of the handnote dues. The suit has been decreed.

In support of this application u/s 25 of the Provincial Small Cause Courts Act, Mr. Kai-lash Roy, learned advocate appearing for the petitioner, raised only two points. His first submission is that the money under the handnote had been paid to the second defendant, who admitted in evidence that he had so received the money. It was, therefore, not open to the court below to pass a decree against the petitioner. In support of this, reliance was placed on Peary Pasi Vs. Gauri Lal and Another, .

I am not impressed with this argument at all. In that case it was held that the transfer was not valid due to certain reasons, which, of course, were not accepted by a Full Bench of this Court in Ghanshyam Das Marwari Vs. Ragho Sahu and Others, , and in that background it was held that the original holder of the handnote had a right to release the debtor from his liability to pay the money under it. In the instant case, the transfer is valid and has not been attacked before me. If that be so, it was open to the learned Small Cause Court Judge to believe the evidence of the second defendant or not to believe it on the question of the alleged payment to him. I may also point out that a handnote is a negotiable instrument and generally and ordinarily it is not open to the executant of the handnote to plead payment to another person.

The second question raised is that it has not been found in this case that the second defendant, at the time of the advancement of the loan was not a professional money-lender. In my opinion, the suit is not bad because of the absence of that finding, as it was necessary for the petitioner to plead and prove facts to show that the Second defendant was a professional and unregistered money-lender. This he never pleaded; nor did he adduce any evidence on that point as was admitted by Mr. Kailash Roy, Therefore, in view of my decision in Babu Ram Japo v. Badu Pathak, 1960 BLJR 477, I hold that the suit is not hit by Section 4 of the Bihar Money-lenders Act.

In the result, the application fails and is dismissed with costs. Hearing fee : Rs. 16.