JUDGMENT In this suit, the plaintiff seeks to recover a sum of Rs. 1,41,029.88p interim interest and interest on judgment at the rate of 18% per annum and costs of the suit from the defendant. Despite service of the writ of summons upon the defendant, he has not appeared in the suit nor, has contested the same. In the premises, I could pass a decree in favour of the plaintiff under Order 8 Rule 5 of the Code of Civil Procedure, 1908, but having regard to the principal document sued upon and the nature of pleadings, I asked the plaintiff to prove his claim. Accordingly, the plaintiff deposed and tendered documents in evidence. 2. It is case of the plaintiff that on 16th December, 1987, the proforma defendant lent and advanced to the defendant a total sum of Rs. 70,000/- on nine hundles repayable on the expiry of 180 days there form together with interest at the rate of 18% pre annum. Those hundles were accepted by plaintiff. On the maturity, i.e., on 14th June 1988, despite presentation of the said hundles the defendant dishonoured the same by none payment. The plaintiff and the proforma defendant made several demands for payment but the defendant refused to pay. On 16th February, 1990 a statement of account in respect of the said sum of Rs. 70,000/- together with interest thereon was settled between the parties and on the same date the plaintiff as acceptor of the said hundles and in discharge of his obligation thereunder paid to the proforma defendant the principal sum of Rs. 70,000/- and thereafter on 28th February, 1990, the plaintiff paid a further sum of Rs. 13.000/- and ultimately on 31st March, 1990 paid another sum of Rs. 30,000/- to the proforma defendant on account of interest accrued in respect of the said sum of Rs. 70,000/-. The plaintiff thus claims reimbursement of the principal sum of Rs. 70,000/- and interest thereon Rs. 43,050/- aggregating to Rs. 1,13,050/- together with interest thereon at the rate of 18% per annum from 1st April, 1990 till 15th August, 1990 quantified at Rs. 27,979.88p. and thus the plaint claim stood at Rs. 1,41,029.88p. 3. The plaintiff has tendered in his evidence the subject nine hundles, the text whereof is as follows :- “180 days above without grace I promise to pay to Mr. 27,979.88p. and thus the plaint claim stood at Rs. 1,41,029.88p. 3. The plaintiff has tendered in his evidence the subject nine hundles, the text whereof is as follows :- “180 days above without grace I promise to pay to Mr. Jayantilal Joshi, 32, G.P. Mukherjee Road, Calcutta-700 025, a sum of Rs. …………… (……………) only on order for value received in cash bearing an interest @ 18% per annum.” 4. On each of the hundles on the right hand side the defendant has signed and on the left hand side the plaintiff has signed. 5. Under Section 33 of the Negotiable Instrument Act, 1881 no person except the drawee of a bill of exchange, or all or some of several drawees, or a person named therein as a drawee in case of need, or an acceptor for honour, can bind himself by an acceptance. Nowhere, in the plaintiff it has been stated that the subject hundles were accepted by the plaintiff for honour. Therefore, the plaintiff could not be held to be liable for any of the said hundles in his capacity as an acceptor as he was not the drawee of any of the said hundles. 6. Under Section 37 of said Act, the drawer of a bill of exchange until acceptance and the acceptor are, in the absence of a contract to the contrary respectively liable thereon as principle debtors. Thus if the subject document are hundles and the same had been accepted by the plaintiff, he was liable thereon as principal debtor. He therefore, could not sue the defendant, the market of the hundles, if they are at all hundles, for having discharged such debt, inasmuch as the relationship between an acceptor, maker and the holder are debtor, surety and creditor respectively. 7. Section 4 of the said Act defines promissory note as an instrument in writing containing an unconditional undertaking signed by the maker to pay a certain sum of money to, or to the order of, a certain person or the bearer of the instrument. The contents of the purported hundles go to show that the same where promissory notes and not hundles. The words “I promise” in the subject hundles must be read as “we promise” for the same having been signed by the plaintiff and the defendant. Therefore, promise to pay has been made jointly by the plaintiff and the defendant. 8. The contents of the purported hundles go to show that the same where promissory notes and not hundles. The words “I promise” in the subject hundles must be read as “we promise” for the same having been signed by the plaintiff and the defendant. Therefore, promise to pay has been made jointly by the plaintiff and the defendant. 8. Under Section 43 of the Contract Act, 1872 a joint promisor may at the best compel the other joint promisors to contribute equally with himself to the performance of the promise, unless a contrary intention appears from the contract. No contrary intention appears from the contract evidence in writing as contained in the subject hundles. The plaintiff, therefore, could not sue for the whole. 9. The claim for the whole could be sustained on any subsequent agreement debt. In this regard three documents have been tendered in evidence, two of which were claimed in the plaint to be acknowledgement of debt and the other an account settled. The documents being letters dated 22nd October, 1990 and 10th October 1990, which were pleaded as acknowledgement of debt in writing, are in vernacular. The words “that apart the amount of my personal loan which was to be repaid within three months would be paid by me upon obtaining loan and that is why unless I get the balance sheet I will not be able to keep my words to you” contained in the latter dated 22nd October, 1990, refers to a personal loan inter se the plaintiff and the defendant and not the transaction being the subject-matter of the suit. Similarly, the words “on account of interest and small debts what was required to be paid to you………..” contained in the latter dated 10th October, 1990 refers to interest and small debts and most probably small debt and interest thereon and not the transaction being the subject-matter of the suit. These two letters may be treated as admission of subsistence of jural relationship between the plaintiff and the defendant as creditor and debtor respectively subsisting as on the dates of the said letters but cannot be treated as agreement to pay the whole. The accounts stated in writing refers to the loan of Rs. 70.000/- and interest accrued thereon, the plaintiff is a witness to the same. The accounts stated in writing refers to the loan of Rs. 70.000/- and interest accrued thereon, the plaintiff is a witness to the same. The accounts stated in writing according to the pleading preceded payment by the plaintiff to the proforma defendant. Therefore, that did not nor could depict an agreement inter se the plaintiff and the defendant to pay the whole. There, is thus no agreement on the basis where of the plaintiff can claim the whole of the amount said to have been paid by him to the proforma defendant. 10. That apart one of the joint promisors can compel the other joint promisor to contribute equally with himself to the performance of the promise provided the promisee has complied him to perform the whole of the promise. Admittedly, the performa defendant did not institute any suit against the plaintiff. According, to the plaintiff merely on the demand of the proforma defendant he made payment to the performa defendant. The payment made, if any, by the plaintiff to the performa defendant was, therefore, not by compulsion but by volition. In such circumstances, the plaintiff could not compel the defendant to contribute equally with himself. Under Article 48 of the Limitation Act, 1963 a suit for contribution by a party who has paid the whole or more than his share of the amount due under a joint decree, the period of limitation is three years from the date of the payment in excess of the plaintiff own share. No suit has been contemplated in Schedule-I of the Limitation Act for contribution by a party who has paid of his own volition the whole or more than his share of the amount due to a third party under a joint promise or the simple reason no such right of recovery is contemplated by law. 11. Xerox copies to the purported hundles where annexed to the plaint. They are tendered in evidence. The originals of the purported hundles were not at all tendered in evidence in evidence although according to the learned dated 31st March, 1990 of the proforma defendant addressed to the plaintiff being part of the Exbt.-D series the performa defendant has handed over the originals of the purported hundles to the plaintiff. During the course of evidence nothing was said as to why the originals of the purported hundles were not produced. During the course of evidence nothing was said as to why the originals of the purported hundles were not produced. No case for acceptance of secondary evidence having been made out, though xerox copies of the same have been exhibited, no Court can accept the same as evidence and place reliance thereon. Therefore, there is no evidence of the original transaction, be that of joint promise as appears from the tenure or a principle debtor and surety, as claimed in the plaint. In the absence thereof nothing has been proved. 12. The plaintiff was last examined on 14th September, 1998 when he said that he is an Income Tax Assessee and he has to refer to his income tax return whether the payment made by him to the proforma defendant has been shown there. In these circumstances, I directed the plaintiff to produce his income tax return on the monday following i.e., 14th September, 1998. On the date, the plaintiff did not appear. He however, through his learned Counsel handed over to me a copy of his income tax return for the assessment year 1990-91 and enclosing thereto, which included, inter alia, his balance sheet as at 31st March, 1990, trading account for the year ended 31st March, 1990 and Schedule-A to the balance sheet namely list of sundry debtors. In the balance sheet the payment alleged to have been made by the plaintiff to the proforma defendant during the year ended 31st March, 1990 as claimed by him has not been shown. It has however, been shown that he is entitled to received Rs. 58,465.08p. from sundry debtors, particulars whereof have been furnished in Schedule-A to the balance sheet. The name of the defendant does not feature in the said schedule. The payment of the sum also to have been made by the plaintiff to the porforma defendant has also not been shown in the said Trading Account. It was argued on behalf on the plaintiff that from the drawing of Rs. 93,500/- the debt due to the performa defendant was discharged. It has been claimed in the plaint that in between 16th February, 1990 and 31st March, 1990, the plaintiff paid to be ptoforma defendant a total sum of Rs. 1,13,050/-. How this sum could be paid out of Rs. 93,500/- has not been explained. The case in hand of Rs. 1,136.32p. It has been claimed in the plaint that in between 16th February, 1990 and 31st March, 1990, the plaintiff paid to be ptoforma defendant a total sum of Rs. 1,13,050/-. How this sum could be paid out of Rs. 93,500/- has not been explained. The case in hand of Rs. 1,136.32p. as shown in the said balance sheet could hardly improve the situation. I kept the matter adjourned from time to time in order to give a further opportunity to the plaintiff to explain the situation. He did not come on the plea that he is unfit. Even today I wanted to give last opportunity to the plaintiff but it was represented that he is now lying admitted in a hospital. 13. The question is can a Court believe a witness, as that of the plaintiff, who claimed that he has paid Rs. 1,13,050/-, when his available resources were limited to Rs. 93,500/-? I do not think so. That apart the plaintiff is an assessee under the Income Tax Act. He is obliged to disclose to income to the Income Tax Authority. He has filed a returned showing his income. In that he has not shown that he had either sufficient income during the year or accumulated fund to pay the said sum of Rs. 1,13,050/-. If the plaintiff had in fact paid the said sum, there is no reason not to show the same in the income tax returns. The plaintiff has, therefore, told untruth to the income tax Authority or has said untruth to this account. When such a state of affairs is apparent on the face of records it would not be proper for a Court of Law to believe such a person. I, therefore, hold that the plaintiff has failed to prove that in fact he had the means to pay a sum of Rs. 1,13,050/- to the proforma defendant as has been contented by him in Paragraph 8 and 9 of the plaint and as a consequence he has failed to prove that he paid the said sum or could pay the said sum. 14. Surprisingly, Exhibit-D series, i.e. letters emanating from the proforma defendant are not marked to the defendant. I am, therefore, constrained to hold that the instant suit is a false suit and accordingly, the same is dismissed with costs assessed at Rs. 14. Surprisingly, Exhibit-D series, i.e. letters emanating from the proforma defendant are not marked to the defendant. I am, therefore, constrained to hold that the instant suit is a false suit and accordingly, the same is dismissed with costs assessed at Rs. 1,50,000/- to be paid by the plaintiff to the defendant.