JUDGMENT 1. - In this second appeal crucial question involved is whether the defendant respondent took the loan in his personal capacity (as alleged by the plaintiff appellant) or whether he borrowed the money from the plaintiff in the capacity of the Manager of the "Prathmik Sahakari Upbhokta Bhandar Limited Jhalrapatan." 2. Both the lower courts have held that the loan was taken for the Upbhokta Society. 3. Reliance has been placed by both the lower courts on Exbt. 1 which itself contains the averments that the loan is taken for the purpose of Upbhokta Society though the word society had not been mentioned and what has been mentioned was that "Uphokta Ke Leno Saru Leena". 4. Before the trial court various issues were framed and the relevant issue was issue No. 4 for the purpose of controversy raised in this appeal. 5. After recording of the evidence both the lower courts have held against the plaintiff that he borrowed the money for his own use. The Hindi version of Exbt. I reads as under : HINDI MATTER 376217A 6. Mr. Mehta appearing for the appellant translated it as under: " Rs. 6400/- advanced to Shivshanker on Duj Asad Vudi 5 taken for the purpose of purchase of sugar for Upbhokta and Rs. 6400/- to be paid by self. Sd/- Shivshanker Sharma." 7. Mr. Sharma counsel appearing for the respondent defendant translated it as under: " Rs. 6400/- in the name of Shiv Shanker given on Duj Asad Vudi 5 for the purpose of taking sugar of the Upbhokta, taken Rs. 6400/- by me. Sd/- Shiv Shanker Sharma." 8. The common feature of the translation is that the amount was taken by Shiv Shanker personally signed personally but the purpose or object of taking loan was mentioned and it was for purchase of Sugar for the Upbhokta Society. 9. Now the principal controversy which has emerged between the parties for absolving the points for determination framed at the time of admission as substantial question of law and the decision of both the lower courts is that whether this amount was taken by Shiv Shanker as an agent of the disclosed principal Upbhokta Society and be is not personally liable. 10. In order to substantiate his contention Mr. 10. In order to substantiate his contention Mr. Mehta submitted that apart from oral evidence which he led to show that Shivnarain told specifically that this amount was given to him and not to the Upbhokta Society. The entry itself shows that it was given to Shivshanker in his name and debited in his account and he signed it in personal capacity without even mentioning his description or office of which he was holding in the office of Upbhokta Society. 11. Mr. Mehta pointed out that a sum of Rs. 4,000/- was deposited in the name of Shivshanker. Exbt. 3 in this regard reads as under : HINDI MATTER 376217B 12. The entry in Exbt. 3 further shows that it was deposited in the account of Shivshanker Sharma and not the Society or on behalf of Society Account. Exbt. 9 reads as under: HINDI MATTER 376217C 7Ra1/- -valim m-e 29 9 69 13. Mr. Mehta pointed out that entry in Exbt. 9 shows that Kanhaiya Lal would pay the amount of Shivshanker upto 5th October, 1969 in the instalment of Rs. 1,000/- and the balance Rs. 1400/- will be paid by 20th October, 1969. 14. This amount of Rs. 2400,- was not paid. This entry is signed by Kanhaiya Lal who was the successor of Shiv Shanker Mr. Mehta's contention is that on the above premises of facts which are disclosed from the documents irrespective of oral evidence, it is clear that Shiv Shanker took money in his personal capacity. Mr. Mehta drew distinction between loan taken for the purpose 'and on behalf of'. If it is not taken on behalf of institution or either personally then there is no relationship of agent and principal and the question of disclosed or undisclosed principal are irrelevant, argued Mr. Mehta. He placed reliance on (1) Madangopal Vs. Narsinghdas & Sons A.I.R. 1951 Raj. 64. in which it has been held : "Negotiable Instruments Act (1881), Section 28-Personal liability of agent. Where a person after signing his name on a negotiable instrument adds Managing Director or Managing Agent, it is not sufficient to indicate that he is making the Company liable and thereby excluding his personal liability. Narsinghdas & Sons A.I.R. 1951 Raj. 64. in which it has been held : "Negotiable Instruments Act (1881), Section 28-Personal liability of agent. Where a person after signing his name on a negotiable instrument adds Managing Director or Managing Agent, it is not sufficient to indicate that he is making the Company liable and thereby excluding his personal liability. He must clearly indicate the name of the principal on the instrument itself and state that he is doing it for or on behalf of such principal as agent and not in his personal capacity." (Para 4). 15. The emphasis in this judgement is that if he acts as an agent then he must mention it in express words and he is doing so in the name of principal for taking loan if he fails to do so he would be personally liable. 16. Mr. Sharma appearing for the respondent submitted that the entire documentory as well as oral evidence is to be found-out whether the loan was taken on behalf of Society or in his personal capacity. He referred section 230 of the Contract Act, which reads as under : "239(section 230). In the absence of any contract to the effect, an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them." 17. Placing reliance upon the judgement of the Hon'bie Suprme Court in (2) Radhakrishna Sivadutta Rai and others v. Tayeballi Dawoodbhai : A.I.R. 1962 S C 538, Mr. Sharma argued that when alongwith the name of the appellant the notes specifically refer to "Khaitan & Sons Ltd." with the preceding words - A/c", and there is no disparity in the notes at all, there can be no doubt that the appellant is shown by the notes to be acting on account of the disclosed principal. Mr Sharma further argued that in the series of decisions of the High Courts in (3) G. S. Bhargava and Co. v. B. Kobayashi A.I.R. 1920 Lahore 484 , (4) Gulzar Ahmed Vs. Sheva Shankar Sahai A.I.R. 1914 Allahabad 253 and (5) Firm of Totaldas v. Khiomal Dewandas A.I.R. 1923 Sind 34 wherein it had been held that in such cases that the disclosed principal's agent is not liable, it is the principal who is liable. 18. Mr. v. B. Kobayashi A.I.R. 1920 Lahore 484 , (4) Gulzar Ahmed Vs. Sheva Shankar Sahai A.I.R. 1914 Allahabad 253 and (5) Firm of Totaldas v. Khiomal Dewandas A.I.R. 1923 Sind 34 wherein it had been held that in such cases that the disclosed principal's agent is not liable, it is the principal who is liable. 18. Mr. Sharma then referred another series of judgement of the High Courts to substantiate his submission that under Section 92 of the Evidence Act. oral evidence is not barred but it can be led to do so what was the nature of the transaction & whether it was entered into on behalf of principal as the agent only. 19. Mr Sharma has referred to the earlier transaction Exbt. D-2 which contains indentical entry It is alleged that the plaintiff admitted that in that case the loan was given to the Upbhokta Society through the agent. Mr. Sharma's case is that this admission of the plaintiff that the present loan is also given to Shivshanker as an agent of the principal Upbhokta Society. 20. It was argued that although detailed discussions of the evidence by both the lower courts have held that the loan was given to Shivshanker not in his personal capacity but as an agent of the disclosed principal of Upbhokta Society no decree can be passed against him and this finding is being based on appreciation of evidence cannot be interfered in second appeal. 21. I find that at the time of admission of the case following substantial questions of law were framed by brother Justice N. M Kasliwal : "1. Whether in the facts and circumstances of the case, the Courts below were justified in holding that the money was borrowed by the defendant on behalf of Prathmik Sahakari Upbhokta Bhandar Ltd., Jhalrapatan and not on behalf of himself in the personal capacity ? 2. Whether the courts below were justified in considering oral evidence to contradict the terms of contract as shown in Ex. 1 inspite of the express previsions of Section 91 and 92 of the Indian Evidence Act ? 3. 2. Whether the courts below were justified in considering oral evidence to contradict the terms of contract as shown in Ex. 1 inspite of the express previsions of Section 91 and 92 of the Indian Evidence Act ? 3. Whether in the facts and circumstances of the case the defendant respondent was not liable for the amount as an agent of the Society as the Society could not be sued under Section 75 of the Rajasthan Cooperative Societies Act and in view of Section 230 of the Indian Contract Act ? 4. Whether the Courts below were justified in holding that as the part of the repayment was made by the Society, it should be assumed that it were the Society and not the defendant, who was liable to repay the loan ? 22. It would not be necessary to deal with substantial questions of law separately because they are overlapping in many respects. 23. There is no manner of doubt that so far as the judgement of this court is concerned in Madangopal v. Narsinghdas and sons (supra), it certainly requires clear indication of the name of the principal on the instrument with a statement that the defendant debtor is doing it for and on behalf of such principal as an agent but not in his personal capacity. Of course this is so because Section 28 of Negotiable Instruments Act was being discussed. However, placing reliance upon, (7) Sree Lal Mangtulal v. Lister Antisepetic Dressing Co. (AIR 1925 Cal. 1062). and (8) Sitarm Krishna v. Chimandas Fatehchand (AIR 1928 Bombay 516), the Rajasthan High Court did hold that the requirement of acts mentioned that instrument was being executed on behalf of the principal in the name of principal and not in personal capacity was mandatory. 24. The question that it was a case of Negotiable Instruments Act, certainly waters down to certain extent but to what extent is a serious question. It would certainly prima facie be held that Shiv Shanker did not mention that he was taking loan on behalf of Upbhokta Society, nor he mentioned while signing that he was Manager or Vyavashthapak of the Samiti and he expressly used the word "Upbhokta Ke Lena Saru Leena" i.e. personally. It would prima facie mean that it was a transaction in his personal capacity. 25. It would prima facie mean that it was a transaction in his personal capacity. 25. Let me now examine whether the Apex Court in Radha Krishna v. Tayeballi (supra) referred to above has laid down a different view as the latter is bound to hold good The bought and sold notes which were very relevant in that case now be reproduced : "We confirm having sold on your account and risk the undernoted goods, to M/s. Radhakrishna Shiv Dutt Rai with A.G. Mark. A/C Khetan and Sons Ltd. Shewpur Banaras Commodity : 500 Five Hundred Bales of Banaras. No. I only with A G. Mark. Delivery : Jan; March 1951 at K. P. Dock. Price : @ Rs. 165 Per bale of 400 lbs. each. Terms of payment on receipt of goods. Brokerage 0-8 per bale. Sales Tax number should be furnished by the buyer otherwise to be charged. Your faithfully, For T. N. Mehrotra & Co Sd/- T. N. Mehrotra." 26. Now it is clear that account '"Khetan and Sons Ltd" was prominently mentioned in the body of the letter and this account Khetan and Sons Ltd. assumed great importance in this judgement. 27. It was clear from the above letter that it was the account of M/s. Khetan & Sons Limited and the transaction being of Khetan & Sons Limited, the Apex Court did not accept the contention of Mr. Pathak that this reference was made by mistake or misconception on the part of the broker. 28. The entire concentration in para 8 was onwards on the question whether a mistake can be accepted or not.At page 544 their Lordships observed as under: "These observations seem to establish two propositions, first that if the bought and sold notes show a material variation neither of them nor both of them taken together can be relied upon for the purpose of proving the terms of the contract, and second if the bought and sold notes agree they are held to constitute a binding contract. To the same effect is the observation made by the Privy Council in Ahushain Shoke v. Moothia Chetty 27 Ind App 30, when Sir Richard Couch observed that : "Moothia Chetty, one of the respondents said in his evidence he did not consider the contract as concluded until bought and sold notes were signed. He was right in this. To the same effect is the observation made by the Privy Council in Ahushain Shoke v. Moothia Chetty 27 Ind App 30, when Sir Richard Couch observed that : "Moothia Chetty, one of the respondents said in his evidence he did not consider the contract as concluded until bought and sold notes were signed. He was right in this. They were the only evidence of the contract." 29. In para 13 their Lordships have stated that there is no disparity in the notes at all and so the two notes can be safely taken to evidence the terms of the contract. It was then stated that when alongwith the name of the appellant the notes specifically refer to "Khaitan and Sons Ltd. with the preceding words "A/c," there cannot be no doubt that the appellant is shown by the notes to be acting on account of the disclosed principal Para 18 reads as under : X X X X X X 30. It would thus he seen that the major emphasis was made on A/c Khetan and Sons Ltd. 31. In the instant case contrary to it as Mr. Sharma has himself translated the entry, it is not in account of any Upbhokta Society not on behalf of Udbhokta Society but only for the purpose of Sugar for Upbhokta Society. This cannot be substituted for and on behalf of. 32. To illustrate: A may purchase goods for the purpose of giving it to a company or a firm or individual who requires it but that would not be purchased on behalf of B. Contrary to it if B purchases goods through A and A expressry makes it clear that he is purchasing on behalf of B as an agent then in that case A may not be liable and B may be liable or in the given case both may be liable. 33. In the circumstances mentioned above the document in the form and entry read as a whole shows that it was not on behalf of the Upbhokta Bhandar nor be signed on behalf of Upbhokta Bhandar or as Manager of Upbhokta Bhandar but it was in personal capacity and what was the purpose is absolutely irrelevant. In my view the judgement of the Apex Court referred to above cannot be held the defendant to his liability in his personal capacity. In my view the judgement of the Apex Court referred to above cannot be held the defendant to his liability in his personal capacity. The Rajasthan decision reported in (9) A.I.R. 1954 Rajasthan 64 makes it more explicit and cannot be said to he either bad law not applicable to the present case even after the judgement of the Supreme Court referred to above. 34. Since the Division Bench of this Court in A I.R. 1951 Rajasthan 64 squarely applies in the present case and the judgement of Hon'ble Supreme Court mentions only indirectly confirmation of those principles. It would not be necessary to discuss the other decisions in second appeal referred to by Mr. Sharma in support of his contention. 35. It is also not necessary to discuss the decision of (10) A.I.R. 1954 Cal. 179 (11) A.I.R. 1931 Sind 4, , (12) A.I.R. 1915 Mad. 509. A.I.R 1933 Sind 34, A.I.R. 1920 Lahore 484, A.I.R. 1918 Allahabad 253 submitted by Mr. Sharma in support of the contention that inspite of Section 92 of the Evidence Act certain ambiguity can be cleared. I am of the view that there is no ambiguity and the entry is very clear and unambiguous and it makes the defendant personalty liable. 36. Regarding submission that earlier similar entry was made and the plaintiff in cross examination stated that in that case Upbhokta Society was the real person who was liable. I am of the opinion that by interpretating that entry the present dispute cannot be solved. 37. The statement of the plaintiff read as a whole clearly goes to show that he made it clear to the defendant that he was giving this amount in personal capacity and not to the Upbhokta Bhandar or Upbhokta Society. 38. It is not necessary to discuss the oral evidence in that respect any more. 39. The result of the above discussions is that this appeal succeeds and the judgement of the lower courts is set aside and the suit of the plaintiff is decreed. However in the facts and circumstance of the case. 38. It is not necessary to discuss the oral evidence in that respect any more. 39. The result of the above discussions is that this appeal succeeds and the judgement of the lower courts is set aside and the suit of the plaintiff is decreed. However in the facts and circumstance of the case. I am not inclined to grant any interest to the plaintiff if the plaintiff (sic defendant) makes the payment within 6 months from today If the payment is not made within 6 months then the plaintiff' would get interest at the rate of 6 per cent from the date of filing of the suit till the date of realisation. 40. The parties would bear their own costs throughout.Appeal Allowed. *******