Pandarinath vs Yeshoda and Others

Siadat Ali Khan, J.—The Plaintiff�s money suit was decreed by the trial Court but dismissed on first appeal. Both the Courts are concurrent in holding the execution of the bond to have been proved. The question, however, remains whether there was any onus on the Plaintiff to prove consideration for the bond. The learned advocate for all the Appellant argued that there was no such onus. A perusal of the bond will show that the sum of Rs. 3,442/- for which the bond was executed was not paid in cash.

The Plaintiff appears to have advanced money to the Defendant in previous transactions entered from time to time in the account books and the above-mentioned sum was the balance that stood out. Once the case was remanded by the first appellate Court and an opportunity was given to the Plaintiff to file his account books to prove the previous transactions.

The Plaintiff came into the witness-box and deposed that the account books were destroyed when his house was looted by the razakars. A perusal of his deposition does not carry conviction. He has admitted in cross-examination that he did not lodge any complaint at the time nor, later on, when the military came. He admits that the accounts books were not regularly kept but were mere pathani khatas.

Again, he stales that alter the loss of the ac-count books he did not prepare fresh ones. If there were transactions and the account books containing them were lost, he would certainly have tried to make fresh accounts. As he did not do so, it is clear that the story that the account books were lost can hardly be accepted. Both the defence witnesses-have deposed that in Manjari, the village concerned, no razakar ever came or plundered any house.

The two witnesses adduced by the Plaintiff also do not corroborate him and do not give any evidence regarding the loss of the account books by looting. It is, therefore, clear that the account books were not produced for any sufficient reason, and were withheld. In the result, the Plaintiff Tatia failed to prove consideration for the bond.

The learned advocate, however, argued that when execution of the bond is proved there, was no further need of proving consideration. We cannot agree with his contention that mere execution of a document proves that it was for consideration. If the document is a promissory note there, is a statutory presumption that the amount mentioned in it is given for consideration; but, when the document is a bond and its execution is proved the onus no doubt lies on the Defendants to show that it was without consideration.

Still, if they succeed in establishing a probability that the debt was not due or that consideration did not pass, the onus shifts to the Plaintiff''s and he was to prove fully that consideration did pass - vide - ''Kalkan Gauda v. Sevriyappa'' 10 Nazir Osmania 648 (A) and the cases cited there (sic). Here the Defendants not only denied any knowledge of the previous debt but also averred that after the death of Vithoba, the Plaintiff, sad quiet or 7 years and raked up the matter alter that period. A perusal of the bond will show that the deist as to be paid by 50 instalments beginning from 1343F., and going down to 1393F. A correct interpretation of the document is that if any instalment is not paid the whole amount will be due in spite of this the Plaintiff has not proved that instalments previous to the three instalments have been paid, or has he proved that he has waived his right to (sic) the past instalments. He has merely staled in the plaint that the previous instalments have been paid. This was denied by the Defendant. When the case was remanded and he gave evidence, he did not even mention in his deposition that the previous instalments were paid. In the circumstances, we cannot hold that either the previous instalments were paid or waiver is proved. In such a case under Article 75, Indian Limitation Act the suit is barred. It has been held in a Full Bench case of the Judicial Commissioner''s Court of AIR 1932 1 (Nagpur) that:

The question is not what the creditor may do but what the debtor is liable for. However the bond may be worded, it is clear that when on default the creditor is entitled to recover the whole sum, the debtor on default at once becomes liable to pay the whole sum and the whole sum does become due within the meaning of Article 75, Sch. I, Limitation Act, Any suit on the bond must, therefore, be governed by that Article and when a suit is barred by that Article the creditor cannot sue for installments which under the primary terms would have fallen fee after the said default.

It should also be noted that the executants of the deed Vithoba had died long before the date of the suit. His legal representatives were his widow and daughter. Clearly they were not in a position to some into the witness-box to depose about any previous transaction or about the deed which bears thumb impression, alleged to be that of Vithoba. Hence stress on their absence is not well placed.

Thus, after full consideration, we arc of the opinion that neither the Plaintiff has succeeded in establishing consideration for the bond nor his suit was within time.

The appeal is, therefore, dismissed with costs.