9911796707
TMI Blog1941 (5) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... uit. The evidence is voluminous and consists in large part of entries in account books. Their Lordships have fully examined it with the assistance of the learned counsel for the appellants, but finding themselves in substantial accord with the views of the facts expressed in the judgments in the High Court and with their reasons for differing from the trial Judge, do not find it necessary to discuss the facts again at length. The substance of the case is that the plaintiffs are nominal owners of seven-eighths share in A.L.A.R.N. Chettiar firm (who will be styled the plaintiffs' firm) carrying on a moneylending business in Kyaunggon, Lower Burma. The true owner of the share was one Nagappa: the remaining one-eighth share was held by defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transaction so far appears a normal and regular transaction. But the plaintiffs allege that the apparent sale was fictitious and entered into under a conspiracy between Kasi and Subbaya to defraud the plaintiffs' firm. It is alleged that the consideration money was returned to Kasi by Subbaya the same day, with the result that the firm lost their property without the benefit of the price, while Kasi enjoyed the property and the price. One of the difficulties in the case has been to appreciate the nature of this conspiracy. It is plain from the plaintiffs' case that Kasi borrowed the Rs, 70,000 and made himself personally liable for the amount, and that he did not use the returned money to pay off the lenders; and there is no eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the success of the plaintiffs' claim his evidence of itself is not of much value. Everything therefore seemed to turn on proof that these cheques were issued for cash to Kasi on 6th January. 3. The kind of business represented by these cheque transactions is said not to be unusual in this kind of bank. The bank being ready to receive cash, takes an amount offered and gives to the temporary customer a cheque drawn on one of the recognized banks. There is an understanding that the cheque is not to be presented till a definite date: on which date it will either be presented to the bank on which it is drawn or returned to the Chettiar bank which issued it in exchange for cash. The cheque is drawn in the name of the customer: there is a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equest in favour of firms in which he was interested: and in one case in creating a temporary loan of ₹ 7500 by him to the bank not on this occasion by means of a cheque. There is no separate account opened in respect of each cheque: no credit therefore is set against the amount of the cheque: none of the entries are in terms associated with Kasi, except the loan account of ₹ 7500: and in respect of the original entry of that amount in the daybook there is an unfortunate blot which might serve to conceal the full initials of the name referred to. In the ledger the entry appears in Kasi's full names. Kasi denies that he ever made such a loan: and as to the other amounts gives explanations which were not disproved, indicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i on that day or subsequently. There is thus a complete conflict between two responsible clerks in the Chettiar bank on this vital question of the cheques. But as regard Somasundaram the defendants have a legitimate criticism to make, viz., that he had given his evidence at an early stage in the case and his evidence was the first indication that the defendants had that the plaintiff's case was that the purchase price had been paid and then returned. Their Lordships are not prepared to decide this case at this stage on the footing that such a case was not open on the pleadings. But when the evidence was returned the defendants not unnaturally applied for further opportunity of cross-examining Somasundaram in the light of the books. Unfo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
