JUDGMENT 1. THE is a suit by Balram Das Agarwalla on the foot of assignments dated August 5, 1955 of two hundis drawn by the defendant Kesardeo Khemka- one on June 6, 1955, as a partner of Central Talkie Equipment Co., 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, 1956, to the defendant and the other of July 12, 1955, to the acceptor Hiralal Agarwalla. Result : each was dishonoured by non-payment. Notice of such dishonour, duly given to the defendant, yielded little result. 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. 2. A suit as this raised on August. 11, 1958, is resisted by the sole defendant, Keshardeo 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 Co. 2. He was compelled to sign the hundi of June 6, 1955. 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. 3. 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. 4. THE presentation of the two hundis, dishonour thereof by non-payment, and the giving of the notice of such dishonour are also denied. 3. 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 Co., a firm, as set out in paragraph 1 of the plaint? 2. Did the defendant execute the other hundi for Rs. 5,000 on July 12, 1955, as set out in paragraph 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. 2. Did the defendant execute the other hundi for Rs. 5,000 on July 12, 1955, as set out in paragraph 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? 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? 4. 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. 5. 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, ext. A, 2. a copy each of the two hundis as annexed to the plaint, ext. 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, ext. C/1, 4. the defendant's affidavit of documents for this suit affirmed on June 15, 1962. and filed on June 28 following, ext. 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, ext. E. 6.the defendant's supporting affidavit affirmed on December 22, 1958, for the aforesaid particulars, ext. F. for the plaintiff; and 1. the plaintiff's warrant of attorney dated August 17, 1961, Ext. 1, for the defendant. 6. 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 Co., and the second one of July 12, 1955, on his own. Mr. 1, for the defendant. 6. 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 Co., and the second one of July 12, 1955, on his own. Mr. Gautam Chakrabarti the teamed 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 exhibit. B/1 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. 5. 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 9 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 2 original hundis-the hundis he had personally seen, IN the course of his 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. 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 taken of having received back the original documents from the department, is dated August 23, 1958. ext. 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 put, "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 Co. of which Goswami and Dutt were then the "warring" partners And 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 Co., was dissolved. More, upon arbitration proceedings a decree followed upon the award of that 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, 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. 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 under his supervision and compared fey him with the originals. Only then the annexures A and B to the plaint- a copy each of the two original hundis -are tendered. Only then I direct reception of such secondary evidence, overruling Mr. Chakrabarti's objection thereto. And the copies are marked exhibit B/1 collectively. 6. AS I 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 there on 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 else where 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 I 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. I therefore reiterate my ruling at the trial directing reception of secondary evidence after having overruled Mr. Gharkrabarti'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 ext. B/1, at the time he addresses me towards the concluding stage of the trial. Not that he casts any aspersion 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. 7. NOW, may be noticed what Mr. Charkrabarti submits, with a view to convincing me that the copies ext. B/1, of the two original hundis have ho standing as evidence. The holder's right to duplicates of lost bills, as provided for by section 45 A 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 over due, 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. 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 poor suit to lay the foundation of a subsequent suit grounded on a lost bill. 8. THIS firm of solicitors dissolved, and "a very few documents" made over by Dutt 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 I 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 be had started this 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 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. Were so searched the safe itself, the drawers of the two almirahs 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 not 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 everyday be overlooked. Loss can never be proved absolutely, as Lord Thankerton observes in (1) Basant Singh and Ors. v. Brij Raj Saran Singh and Ors., (1935) 62 I.A. 180: 39 C.W.N. 1057: A.I.R. 1935 P.C. 132. 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. Ext. 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. 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 expectation 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 case; (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 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. 9. 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 paragraph 7 ante and qq. Nos. 3 and 34 to Goswami). But the plaintiff Balram 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). Nos. 3 and 34 to Goswami). But the plaintiff Balram 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 discrepancy. I am not prepared to make much of it. Let it be remembered that Balram was giving his evidence on Sept, 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 there-abouts: just as Solicitor Goswami says too. Certainly they did not talk on weather that day. They talked about the case obviously. Balram 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 Balram 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 Balram Das to Goswami for launching a litigation on the two assigned hundis without the hundis being carried by Balram Das and 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 Balram 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 Balram 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 Balram Das says (q. No. 46). Again, on August 7, 1958, Goswami had kept the papers (for filing the suit) ready, as Balram 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, Balram 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 Balram Das's evidence has not been "drilled". 10. 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 Balram 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. Sloicitor 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 forth coming. 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. 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 Dutta had participated too. (See paragraph 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. 11. 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 avail-aole 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 satisfies 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? 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 satisfies 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 ad 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 hundis 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 paragraphs 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 Kesardeo Khemka himself 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 Company? He does So the mis-description, the false description - nothing but a surplusage - be excised. He does So the mis-description, the false description - nothing but a surplusage - be excised. And what remains is the signature of Kesardeo Khemka saddling him personally with the liability for what he signed, namely, the hundi, provided that the hundis does not go down on the score of duress. (More of which hereafter in paragraph 33 infra). In view of this clear denial by Kesardeo 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 (Kesardeo Khemka), other things being there; the manner in which he described himself ; "For Central Talkie Equipment Co. 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. 35,000 of his status, as "Acting Superintendent of the Private Treasury of His Excellency Sir Maharaja, the Prime Minister of His Highness the Nizam", was dismissed by Lord Buckmaster, delivering the judgment of the Board in (2) Firm Sadasuk Janki Das v. Sir Kishen Per shad and another, (1919) I.L.R. 46 Calcutta 663 : A.I.R, 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 (Kesardeo Khemka) who described himself as such. 12. THUS, it is plain to be seen that the object of foisting upon the defendant a false claim on the foot of a false hundis, 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 them can the object be? The suggestion to the plaintiff Balram Das Agarwalla is that he has been "deliberately suppressing those hundis with an ulterior motive". Indeed, it cannot, because the defendant himself admits that he had lent his signatures on both the hundis. What else them can the object be? The suggestion to the plaintiff Balram Das Agarwalla is that he has been "deliberately suppressing those hundis with an ulterior motive". He truns 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." Balram 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 Balram Das Agarwalla has raised this action is "entirely false and fictitious" will be discussed when I reach that issue. (See paragraphs 35 to 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 proforma 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 Balram Das, said to be an assignee, the original payee Pramila and the heris 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 logs of the two hundis may very well have been taken. Certainly, it would have been better if the original payees were impleaded proforma, 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. 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 paragraph 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 Procedure Code, 5 of 1908, for "Suits on lost negotiable instruments", or the principle on which is rests, appears to have been overlooked. This rule bears : "16. 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 ends 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, rule16, dose not in terms apply. And once I take such indemnity, by way of abunadent caution, the defendant will be amply protected against the claim of any other person upon such instruments. Where then remains any scope for the apprehension he nurses? Therefore, Order 7, rule16, dose not in terms apply. And once I take such indemnity, by way of abunadent caution, the defendant will be amply protected against the claim 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. Chakarbarti urges upon me shakes that conclusion by one jot or one title. But another contention of this 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 no chance of seeing them again. A year letter, 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' 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 loss 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, Ext. 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 Co., since dissolved. (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? (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? 13. THEN, why is so much being said about the hundis having not been lost, when it appears to be clear that the defendant had had inspection thereof, before they were lost, and that, such inspection over, his written statement was filed? On or about December 22, 1958, the defendant took out a master's 18. summons for further and better particulars and inspection of the relevant documents too within four days from the date of the order: Ext. E. There was an order in terms of prayer (1) And accompanied by a clerk of his attorney, 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 be informed that the hundis were missing, whereupon his attorney sent him a letter which however has not been disclosed. Kesardeo 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, Kesardeo 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. 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 the end in the shape of a further application and a further order of the Court. Thee, after such inspection, he field his written statement admitting (i) in paragraph 1 that "he was compelled to sing the said Hundi" (of June 6,1955) and (ii) in paragraph 2 that "the hundi (of July12, 1955) was signed by" him. So, singing 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 suit loss which the defendant, it seems, is out take full advantage of. 14. 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 Kesardeo Khemka ; and C. that the one of June 6, 1955, was executed as aforesaid qua partner of Central Talkie Equipment Co, 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 any time, just as he says in chief in answer to questions 1 to 7. His cross-examination is, however, almost a relevation. 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 any time, just as he says in chief in answer to questions 1 to 7. His cross-examination is, however, almost a relevation. 48 Chittaranjan Avenue is the address where all the family offices of the defendant, including Central Talkie Equipment Co., 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 every day in June-July, 1955 indeed throughout 1955. Still he goes there every day. 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. Nos. 52, 54, 55-57, 65, 71-74 etc.). It is difficult to beat Kesardeo Khemka in lying. That such a one will indulge in a little puffing as a partner of Central Talkie Equipment Co. (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 be surprised at. 15. IN view of all such telling circumstances, what does it matter that the plaintiff Balram Das does not know of his own whether Central Talkie Equipment Company is a partnership firm or not ? IN paragraph 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. IN paragraph 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 tan to 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. 16. TO the third and the fourth issues I now proceed. (His Lordship then discusses the evidence and continues). (?). 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. 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. 17. I now examine how the defendant rebuts this presumption, as his counsel thinks he does. The case 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" (paragraph 1) and the latter of which "was signed" by him (paragraph 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 reprensible 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. 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 (3) Siddik Mahommed Shah v. Mt. Saran and others, A.I.R. 1930 P.C. 57, no amount of evidence can be looked into upon a plea which was never put forward. 18. 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 moneylenders 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 (4) Rani Ch. Kunwar v. Narapat Singh, (1907) 34 I.A, 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 (5) Nagubai Ammal and others v. B. Shama Rao and others, A.I.R. 1956 S.C. 593, where the plea of lis pendens was not taken in the plaint, 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. 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. I had an occasion to deal with this branch of the law in detail in Suit No. 1645 of 1962 (6) J. K. and Sons v. Metal Press Works Limited when rendering my order on December 23, 1935, 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 the? 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. (The judgment then deals with the evidence that amounts received by the defendant from Dharam Chand were entered in the defendant's books of account, and continues). 19. 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 Kesardeo's books of account would have gone some way at least, if not a long way, to prove what he is out to. And whether or no the hundis in suit were there would have been found out too. Absence of entries on these two hundis in Kesardeo'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 s. 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 sec. 34 is not the only section. There are other sections as well, such as sec 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 fact, 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 Mudholkar, J., speaking for the Court, in (7) the State of Andhra Pradesh v. Cheemalapati Ganeswara Rao and another, A.I.R. 1963 S.C. 1850 at pages 1867-68: 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 (8) Imambandi and others v. Haji Mutsaddi and others, (1918) 45 I.A. 73 : I.L.R. 45 Calcutta 878 : A.I.R. 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, 20. 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 Kasardeo 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. And still Kasardeo 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 decree 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 paragraph 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. 21. 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 Balram 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 is suit within the meaning of section 8. 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 is suit within the meaning of section 8. Because of the indrosement 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 Balram 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, under section 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. 22. 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-availablity 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 day following etc. None of these grounds can prevail. I do not think much of Balram Das's evidence (qq. 22, 141-152, for examples) that he had seen the power of attorney of 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-disclourse. Because, it is not his document. 22, 141-152, for examples) that he had seen the power of attorney of 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-disclourse. 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-availablity being not proved. Furthermore, it needs remembering, as Mr. Charkrabarti 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 Kesardeo 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. 133 to Balram 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 5, 1955 I see the same authority. No mala fide is to be seen anywhere ; nor serverance 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 (9) Pramod Kr. Pati and another v. Damodar Sahu and others, A.I.R. 1953 Orissa 179, a case 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. Pati and another v. Damodar Sahu and others, A.I.R. 1953 Orissa 179, a case 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 1st hundi of June 6, 1955 as he is. 23. THIS is how I find absence of the power of attorney incapable of standing between the plaintiff and his success, 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 Kesardeo is) from denying, in the present suit thereon by the holder in due course (as the plaintiff Balram 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 paragraph 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 sec. 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). No doubt, by virtue of the provisions in sec. 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 indrose, and that too at the date of the bill, 13 not at issue here. So, section 121 does no duty to him. Be that as 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. 24. 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 better not pry. 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 better not pry. And then why underestimate the importance of a husband in a family the like of which is the plaintiffs? 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 Balram Das and Dharam Chand, is borne in mind, there is little in it to be pooh-poohed. Again, because of blind faith in Dharam Chand, the plaintiff did not hesitate to buy the hundis, though he had known little about Kesardeo and Hiralal (q. No. 162). If he rushed headlong for a bad deal, for the sake of one whom he reveres 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 plaint, 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, I 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, 25. 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. I therefore find the third and the fourth issues in his favour, 25. 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 question 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 nonpayment. 26. 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: Sec. 22. So, the date at which it fell due was August 11, 1955: paragraph 10 ante. Two days before this date, that is to say, on August 9, 1955, he had seen again the defendant Kesardeo 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 Balram 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 Kesardeo and he had met one another on the road resulting in a renewed assurance from Kesardeo that the payment would be made. No letter was written to Kesardeo calling upon him to make the payment. This continued for 3 or 4 months beyond which no further demand was made, save that on one occasion Kesardeo and he had met one another on the road resulting in a renewed assurance from Kesardeo that the payment would be made. No letter was written to Kesardeo calling upon him to make the payment. What is more, Balram 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 sent a prior letter of demand by his solicitor, for which again he has no explanation to offer, (See qq. 1.63 -178 in cross-examination). Grant all this Mr. Chakrabarti elicits in cross-examination of the plaintiff Balram Das and presses upon me. Still all you can say is that Balram Das is somewhat of an unusual type of a litigant who loves to '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 Balram 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 codemns as "indefensible" in (10) Surajmull Nargoremull v. Triton Insurance Company Limited, (1924) L.R. 52 I.A. 126 : 29 C.W. N. 893 : I.L.R. 52 Calcutta 408. 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 codemns as "indefensible" in (10) Surajmull Nargoremull v. Triton Insurance Company Limited, (1924) L.R. 52 I.A. 126 : 29 C.W. N. 893 : I.L.R. 52 Calcutta 408. 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 to 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 Imitation which it is not for me to abridge by throwing out 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 interval of ten years and a little more would dim the definiteness with which he could depose thereto. He was speaking instead of the broadest 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 Balram Das as "absolutely false." But he does not stop with this stimulating 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, before filing his written statement, as my finding is. 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, before filing his written statement, as my finding is. (See paragraph 19 ante). Still all he could aver in his written statement on assignment was his lack of knowledge thereof, as also denial of the giving of the notice thereof: paragraph 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 two 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, 27. 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. 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. 28. THE second conclusion come 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 paragraph 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 presentiment 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 30, 37 and 64 of the Negotiable Instruments Act, the drawer, the defendant before 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 (Hiralal), due notice of such dishonour having been given to him (drawer): s. 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 Kesardeo) is not liable thereon to the holder (Balram Das) : section 64. At the risk of repetition, without more, the position, it is plain, appears to he 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, "76. At the risk of repetition, without more, the position, it is plain, appears to he 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, "76. No presentment for payment is necessary, and the instrument is dishonoured at the due date for 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, Kesardeo, promised to pay the whole amount due (on the second hundi), and after maturity too, has been noticed. (See paragraphs 42 and 43 ante). To say: 'Pray, give me a little 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 Kesardeo 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, gunning 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 - Kesardeo 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 contention that section 76 (c) is attracted, thereby rendering unnecessary the presentment 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 Kesardeo says about Hiralal is true. And what does he say? On a consideration as this, I should accept Mr. Panja's contention that section 76 (c) is attracted, thereby rendering unnecessary the presentment 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 Kesardeo 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 Kesardeo for reimbursement when he holds no fund of the drawer (Kesardeo) at the time of payment. (See the speech of Lord Herschell in (11) Bank of England v. Vagliano Brothers, (1891) A.C. 107 at pages 147 and 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 Kesardeo suffering damage. That is not the defendant's evidence too. In the words of section 79, 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 Kesardeo, the drawer, because be 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 Kesardeo whose hundi over his admitted signature Hiralal accepted, presentment recedes into the background all the more. Because, who has even 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. Because, who has even 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 paragraphs 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 what of presentment of the second hundi to Hiralal and that no presentment to him was accordingly necessary under section 76 (d). 29. 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 sixth paragraph which bears : 6 The said second hundi was also duly presented to the said Hiralal Agarwalla on the due date and was also dishonoured by non-payment." 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 (12) Mensa Akumankra v. Paul and another, decided on July 12, 1917, and came into the reports in 1918: A.I.R. 1918 P.C. 312: "their Lordship's principle is 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. 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. 30. 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 second 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 (13) Sriniwas Ram Kumar v. Mahabir Prasad and others, 1952 S.C.A. 116 : A.I.R. 1951 S.C. 177, 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 per cent 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. 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. Mukherjee, J., (as his Lordship then was), speaking for the Court, observed: the decision of the trial court was right and the High 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 on 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 In paragraph 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. C. Is admitted too, but by the plaintiff on oath, want of presentment to Hiralal: just what the defendant pleads In paragraph 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 manifest 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. 31. AND this is the conclusion I have come to, in full consideration of the three cases Mr. Chakrabarti cites : (14) Eshenchunder Singh v. Shamachurn Bhutto and others, (1866) 11 M.I.A. 7, (15) Hiralal Chatterjee and others v. Giribala Debi, (1916) 23 C.L. J. 429, and (16) Deoki Nandan v. Murlidhar and others, A.I.R. 1957 S.C. 133 In Eshenchunder's case, 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, (supra), Sir Asutosh 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's case, (supra), Venkatarama Ayyer, 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 Kesardeo, though not in the pleading, is supported by Kesardeo's own evidence. 32. It is so unlike the case before me where Hiralal having not been put in fund by Kesardeo, though not in the pleading, is supported by Kesardeo's own evidence. 32. HAVING regard to the foregoing considerations, I answer the fifth and the sixth issues as under: Issue No. 5.- Yes. (See paragraphas 41-44 ante). Issue No. 6- Yes ; the first hundi was duly presented to the defendant a little after due date and dishonoured by non-payment, 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 paragraphs 44 et seq) The seventh issue merits the finding that the plaintiff is entitled to reliefs set out below. 33. IN the result, there must be judgment for the plaintiff in terms of prayers 1 and 5 of the plaint. Interest at 6 per cent 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 out in paragraph 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. 34. CERTIFIED for two counsel.