JUDGMENT
1. On the 25th of February, 1920, the defendant Lallu Mal executed in favour of the plaintiff Shambhu Dayal a promissory note for Rs. 8,000. The document begins with the following recital, "I have to-day taken a sum of Rs. 8,000 in cash for payment to Ram Chander Kedar Nath, commission agents of Meerut. On the same date Lallu Mal executed a receipt for the sum of Rs. 8,000, beginning with the words, "I have received to the last farthing the sum of Rs. 8,000 in respect of the note of hand executed by me in favour of Shambhu Dayal. Nothing now remains unpaid out of the amount of the said note of hand." This receipt was attested by two witnesses. Piarey Lal and Timmal Singh, and as it happens each witness has appended to this signature a certain note. Piarey Lal notes that he attested the receipt at the request of Lallu Mal. The ordinary meaning of such a note by an attesting witness would certainly be that he had not seen Lallu Mal with his own eyes execute the receipt, but had attested it at Lallu Mal's request upon an admission by the latter of the genuineness of his signature. Timmal Singh's note is to the effect that Rs. 8,000 were paid over in cash in his presence. The suit when first instituted was dealt with ex parte on the failure of the defendant to enter an appearance. Timmal Singh was examined on the 12th of August, 1920, in the ex parte proceedings as a witness for the plaintiff. He swore to the execution of the promissory note and receipt and stated, "the money was paid in cash in my presence." The defendant subsequently entered an appearance and satisfied the Trial Court that he could show sufficient grounds for having the ex parte decree set aside. His next step was to challenge the plaintiff to produce his account books and to take time to inspect the same. In his written statement he finally took the line that, while the promissory note and the receipt had undoubtedly been executed by him, and were in fact entirely in his handwriting, no consideration whatsoever had passed. He explained the matter in this way. He had been gambling in grain with the firm of Ram Chander Kedar Nath, whose names appear in the promissory note. In the month of February 1920 he was anxious to enter into a further transaction with them in respect of 40 grain pits, deliverable three months later. The firm refused to allow him any further opportunity of speculating in grain, unless he was prepared to give some advance payment or security. Having no cash in hand and being in fact considerably indebted to the firm of Kedar Nath he offered to give them a promissory note. They thought it would not be convenient to take the promissory note either in their own names, or in the names of any member of the firm, and suggested that it might be made out in the name of the plaintiff Shambhu Dayal, who is some sort of a distant relation of Kedar Nath's. On this basis the transaction was entered into, and the two documents in suit were executed. On the case going to trial upon these pleadings, the Court very properly laid the burden of proof on the defendant and Lallu Mal himself gave evidence and was supported by two witnesses, Raghubar Saran and Bharat Singh. Lallu Mal's evidence certainly does not sound straightforward or satisfactory. In particular, when he was examined about certain hundis which he had executed in favour of the firm of Ram Chander Kedar Nath, he was obviously fencing with the Court and keeping back as much of the truth as he could. The important point to be noticed, however, is that he admitted the genuineness of the two hundis executed by him in favour of the firm of Ram Chander Kedar Nath, which the plaintiff produced as part of his evidence. The witnesses Raghubar Saran and Bharat Singh have been adversely criticised by the Trial Court, and, on examining the record of their evidence for ourselves, we can see no reason to reconsider the adverse verdict the Trial Court has pronounced upon them. Certainly, if Raghubar Sarau is telling the truth, he would have been asked to attest the receipt. If the plaintiff had rested on the case as it stood at the close of the defendant's evidence, it seems impossible to doubt that the Trial Court would have decreed the claim on the basis of the double acknowledgment contained in the negotiable instrument itself, which is the basis of the suit, and in the receipt executed on the same date. The plaintiff, however, elected to produce evidence and there is certainly room for controversy about the evidence which he produced. At the outset, the plaintiff departed from the position which he had taken up at the ex parte hearing. Timmal Singh himself had to admit that it was not literally true that Rs. 8,000 in cash had passed from the plaintiff to the defendant on the 26th of February 1922. The account which he now gives of the transaction may fairly be summarised thus. The plaintiff Shambhu Dayal had been engaged in speculation with the firm Ram Chander Kedar Nath and had been more fortunate than Lallu Mal. There was money due to him on a balance of account from the same firm and it seems that there was also a sum of money due to him on a loan which had been taken from him some years before by Khedar Nath. The total liability of the firm of Ram Chander Kedar Nath to the plaintiff Shambhu Dayal worked out at exactly Rs. 5,000. Now Gopal Chander, son of the plaintiff Shambhu Dayal, who seems to have carried this transaction through on behalf of bis father and who was very properly produced as a witness in his father's place, deposes that he came into Meerut with Rs. 3,000 in cash, which he was prepared to advance to Lallu Mal. This advance he did make, and for the remaining Rs. 5,000, necessary to make up the total of Rs. 8,000, he turned to the witness Timmal Singh, who is himself a partner in the firm of Ram Chander and Kedar Nath, and said in effect, "now let me have the Rs. 6,000 which the firm owes me and I will hand it over to Lallu Mal to make up the total of Rs. 8,000 for which he has given me a promissory note." According to Gopal Chander it was Lallu Mal himself who replied that this would not be necessary as the firm of Ram Chander Kedar Nath would give him (Lallu Mal) credit for this sum of Rs. 5,000 in reduction of the debt which he owed them. In substance, therefore, the plaintiff's case was this. He advanced Rs. 3,000 in cash and for the rest he took over Lallu Mal as his debtor in a sum of Rs. 5,000, in substitution for the firm of Ram Chander Kedar Nath who had previously owed him the money. The plaintiff supported his story by the production of his account books. These have been adversely criticised by the learned Subordinate Judge upon grounds which seem to us somewhat captious and unreasonable. The entries in these books of account, according to the Christian era, are correct, the day of the week being correctly given in accordance with the corresponding English date. There is a persistent error, extending throughout all the accounts which have been submitted for inspection and covering a period of at least two years, in the correspondence between the Hindi date given according to the Sambat year and the English date. This circumstance, although not particulary creditable to the plaintiff, is not really a valid reason for discrediting the genuineness of the accounts themselves. A very probable explanation of the manner in which such a discrepancy between the Hindi and English dates could come into existence, and continue aggregating itself over a series of years, was suggested to us in argument and seems to us reasonable enough. When we come to the entries for the important date, the 26th of February, 1920, we find that the account purports to show a cash payment of Rs. 8,000, to Lallu Mal on the Security of a promissory note partly covered by cash receipts aggregating precisely Rs. 5,000 from the firm Ram Chander Kedar Nath on account of money previously due from the said firm. In substance, the entries agree well enough with the story told by Gopal Chander in the witness-box. They certainly cannot be said to contradict his story.
2. As for the other point taken by the learned Subordinate Judge, namely, that it is open to argument whether the plaintiff had Rs. 3,000 in cash on hand on the 26th of February, 1920, it does not seem to us that there is anything in it. He started the day with a cash balance of Rs. 2,133-14-6, and by the end of the day he had depleted his cash balance to such an extent that he had only Rs. 207-14-9 in hand. There had been other receipts during the day besides the nominal receipt of Rs. 5,000 from the firm Ram Chander Kedar Nath. Here again there seems no valid basis for the contention that the evidence given by Gopal Chander is contradicted by his accounts. As regards the cash payment of Rs. 3,000 the evidence given is that of Timmal Singh and Piarey Lal. of course Timmal Singh's evidenoe is no doubt discounted by the fact that he had taken it upon himself at the ex parte hearing to depose that the entire sum of Rs. 8,000 was paid in cash. At the same time it is reasonable to make some allowance for the manner in which evidence is taken at ex parte proceeding. On the story told by Gopal Chander if it be assumed even for the sake of argument that the story is in the main true, there was a kind of payment of Rs. 5,000 involved in the transfer of Rs. 5,000 from Ram Chand Kedar Nath to Gopal Chander and back again to Ram Chander Kedar Nath in part satisfaction of the money which Lallu Mal owed. The evidence of Timmal Singh cannot be wholly discredited on the basis of the loose and summary statement made by him in the ex parte proceeding. Moreover, as it seems to us, the trial Court has wholly overlooked the extent to which any evidence produced by the plaintiff regarding the payment of consideration is corroborated by the defendant's signature on the two documents which are the basis of the suit. We are prepared to accept the plaintiff's evidence as proving a cash payment of Rs. 3,000 made to Lallu Mal in connection with the execution of the promissory note. Now as regards the balance of Rs. 5,000 there is some documentary evidence in favour of the plaintiff still to be noticed. On the said date, namely, on the 26th of February, 1920, Ram Chander Kedar Nath executed in favour of Shambhu Dayal and his son Gopal Chander a formal receipt for Rs. 5,000 as received on account of money due from the defendant Lallu Mal. They divided this into two heads, Rs. 2,700 received on account of two hundis executed by Lallu Mal, and Rs. 2,300 credited to Lallu Mal. The hundis Lallu Mal himself admitted were handed over to Gopal Chander in order that he might keep them as evidence of the payment by him and his father of this part of the consideration for the promissory note. Undoubtedly this item of Rs. 2,700 is proved up to the hilt. Our real difficulty is about the item of Rs. 2,300 in any shape or form. The accounts of the firm Ram Chander Kedar Nath were not produced. We may take it as admitted that Lallu Mal was indebted to them on the 26th of February, 1920, to an amount considerably in excess of Rs. 2,300. But what is not proved is that they gave him credit in current account, in reduction of his liability, for this sum of Rs. 2,300. We are bound to hold that this is not proved. The only question then is whether this sum of Rs. 2,300 can be decreed in favour of the plaintiff on the strength of the defendant's signature to the pro-note and the receipts. We have already indicated our opinion that this could have been done if the plaintiff had offered no evidence at all. As the case now stands the plaintiff himself has gone back on the recital in the promissory note to the effect that Rs. 8,000 were paid over in cash. Abandoning that recital, he has undertaken to prove that Lallu Mal got the benefit of Rs. 8,000 partly in cash and partly by reduction of his liabilities towards the firm of Ram Chander Kedar Nath. In our opinion the plaintiff has failed to prove the latter part of his case to the extent of this item of Rs. 2,300, and we must give effect to this finding.
3. In the result, therefore, we set aside the decree of the trial Court and in lieu thereof we give the plaintiff a decree for Rs. 5,700 with proportionate interest. The parties will pay and receive costs in proportion to failure and success in both Courts. Costs in this Court to include fees on the higher scale. "Under the circumstances we decline to allow the plaintiff interest pendente lite or future interest.