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Sheo Nath Prasad Vs. Sarjoo Nonia and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Banking
CourtAllahabad
Decided On
Reported inAIR1943All220
AppellantSheo Nath Prasad
RespondentSarjoo Nonia and anr.
Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under.....collister, j.1. i have had the advantage of reading the judgments of three of my colleagues. i agree with the finding of my brother dar and my brother mathur that it was open to the plaintiff-appellant at the trial of the suit to prove the alleged loan by such evidence, including the receipt, as may have been available to him ; and i am in general agreement with the reasoning of my brother mathur as regards the appeal which is before us for decision. where as here and as usually, the terms of the contract--by which i mean all its substantial terms--have not been embodied in the promissory note and where, as here, the promissory note is inadmissible in evidence by reason of section 35, stamp act, it is open to the plaintiff to prove the terms of the contract. the defendant will of course.....
Judgment:

Collister, J.

1. I have had the advantage of reading the judgments of three of my colleagues. I agree with the finding of my brother Dar and my brother Mathur that it was open to the plaintiff-appellant at the trial of the suit to prove the alleged loan by such evidence, including the receipt, as may have been available to him ; and I am in general agreement with the reasoning of my brother Mathur as regards the appeal which is before us for decision. Where as here and as usually, the terms of the contract--by which I mean all its substantial terms--have not been embodied in the promissory note and where, as here, the promissory note is inadmissible in evidence by reason of Section 35, Stamp Act, it is open to the plaintiff to prove the terms of the contract. The defendant will of course be entitled to rebut the evidence so adduced and establish that there was in fact no loan; but if he fails to do so, the plaintiff will ordinarily succeed on the proved contract of loan.

2. In the case before us, I am satisfied that all the terms of the contract were not incorporated in the promissory note. In view of this finding, the other questions of law which have been agitated before us have become hypothetical. I do not therefore propose to decide them. It has now become apparent that in the Full Bench case of Nazir Khan v. Bam Mohan : AIR1931All183 it was alleged and apparently accepted that the entire terms of the contract were embodied in the promissory note. Here in my opinion, they are not; and, in my experience, they seldom are so embodied in a ease where a promissory note is executed against a simple advance of money. If the Pull Bench decision was intended to apply to such a case, I am in disagreement with it. Since all the terms of the contract were not embodied in the promissory note in suit, it follows that the bar of Section 91, Evidence Act, does not apply. Any findings by me in respect to a state of facts other than those here existing would therefore be obiter and irrelevant. As regards merits, I agree, for the reasons given by my brother Dar and my brother Mathur, that the appeal should be dismissed.

Bajpai, J.

3. The facts of this case and the law relevant to those facts have been discussed at length by ray colleagues, Dar and Mathur JJ. I agree with them and my brother Collister that the bar of Section 91, Evidence Act, does not apply. The merits, however, are against the appellant and he has failed to prove by independent evidence that the loan was advanced to the respondent. I would, therefore, dismiss the appeal.

Hamilton, J.

4. This is a second appeal by a plaintiff, Sheo Nath Prasad, arising from a suit brought by him against Sarju Nonia and Eamdeo Nonia. The plaintiff alleged in his plaint that Bhaggu Nonia deceased had borrowed Rs. 495 at Re. l 4-0 per cent, per mensem on 3rd March 1934 and in proof of the debt he executed a note of hand together with a receipt and having affixed stamps on them put his signature and thumb impression on them; that he handed them over to the plaintiff and promised to pay the amount aforesaid with interest very soon but he did not do so and as defendant Sarju Nonia is the nephew of Bhaggu Nonia and defendant Eamdeo Nonia is the daughter's son of the deceased, in possession over the estate of the deceased, they are liable for payment of the debt; that the cause of action arose on 3rd March 1934, the date on which the debt was borrowed and the note of hand executed and in the end of February 1937 when the defendants refused to pay. The plaintiff accordingly claimed Rs. 700 principal and interest plus pendente lite and future interest against the estate of Bhaggu Nonia in possession of the defendants. Together with the plaint the plaintiff filed two documents, one as being the pronota and the other as being the receipt executed by Bhaggu Nonia. The defendants denied the existence of any loan and the execution of any promissory note and receipt by Bhaggu Nonia.

5. The trial Court dismissed the suit holding that the promissory note was insufficiently stamped and was, therefore, inadmissible in evidence and the plaintiff could not prove his claim on the loan as the terms of the loan were contained in the promissory note and in view of Section 91, Evidence Act, those terms could not be proved apart from the promissory note. The plaintiff appealed but the Civil Judge of Azamgarh dismissed the appeal finding that the alleged promote was insufficiently stamped. The second appeal came up before a learned Judge of this Court who referred it to a Full Bench as he held that the Full Bench decision of this Court in Nazir Khan v. Bam Mohan : AIR1931All183 required reconsideration. The learned Counsel for the appellant laid stress on this point rather than on whether this suit was correctly dismissed. He has referred us to a number of decisions of various High Courts but in the view that I take I consider it unnecessary to refer to all of them.

6. It appears to me that a promissory note may result either (1) from an intention to reduce to the form of a document the terms of a contract or (2) from an intention to create a negotiable instrument, so as to set in motion the machinery of payment. The terms of certain contracts are such that if they are reduced to the form of a document, a promissory note will necessarily result. When a person lends money to another on certain terms he may do so without anything being recorded in writing and depend on oral evidence to prove the transaction in a Court. He may however think it inadvisable to depend on oral evidence because there is a danger that the Court may not believe his witnesses or that his witnesses may die before he has to sue if the money is not repaid. He may then insist that the terms of the contract be reduced to the form of a document and the result may be a promissory note. On the other hand, he may only lend money if his recovery of it is speeded up by the borrower executing a negotiable instrument. This is clear if on giving the money he takes a cheque from the borrower. The lender presents the cheque at the borrower's bank and he at once gets the money, provided of course that the cheque is honoured. One may ask oneself how the machinery of payment has been set in motion by the borrower when the negotiable instrument is a promissory note and not a cheque. At first sight, a written promise to pay will not bring payment any nearer than an oral promise to pay. The answer to the question is that a promissory note is a negotiable instrument and the lender having received the pronote may use it to pay off one of his own creditors, provided of course that the creditor will accept it. If his creditor does so, and the pronote is honoured, the lender is practically in the same position, when he receives the pronote, as if he received payment in cash.

7. When the promissory note is properly stamped it is immaterial whether it came into existence because the intention was to reduce the terms of a contract to the form of a document or because the intention was to create a negotiable instrument. If, however, the document alleged to be a pronote is inadmissible in evidence because it is insufficiently stamped or not stamped at all the position is different under Section 35, Stamp Act, no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped. It was held in Mt. Bibbo v. Gokaran Singh : AIR1937All101 that a promissory note insufficiently stamped was inadmissible in evidence for any purpose. When a document relied on as evidence by either party is considered by a Court to be inadmissible in evidence, under o. 13, B. 6, Civil P. C., a certain endorsement has to be made on it together with a statement of its having been rejected and under Rule 7(2) documents not admitted in evidence shall not form 'part of the record and shall be returned to the persons respectively producing them. Under Section 64, Evidence Act, documents must be proved by primary evidence. When therefore, a plaintiff alleges a loan and files with his plaint a document which he alleges to be a promissory note and it is found to be unstamped or insufficiently stamped there can be no proof of the contents of the document, whether of the fact that it is signed by someone or of the identity of the person who has signed it, supposing there be a signature, or of the terms of any transaction recorded in that document and the document should be returned. A suit on the pronote, when the document is alleged to be a pronote, must consequently fail. If the pronote was, however, executed in connation with a loan the question remains whether a suit on the loan can be maintained. If it is alleged that the pronote was given in full satisfaction of the loan the suit must fail but as has been pointed out in Maung Chitv. Boshan N.M.A. Kareem Oomer & Co ('34) 21 A.I.R. 1934 Rang. 389 and Perumal Ohettiar v. Kamakshi Ammal ('38) 25 A. I. R. 1938 Mad. 785 the pronote may have been given in conditional payment or as collateral security.

8. There is then a third possibility that there was no intention to bring into existence a negotiable instrument but an intention to reduce to the form of a document the terms of a contract of loan with the unavoidable result, in view of the particular contract, of bringing into existence a pronote. With all respects to the learned Judges who decided the case reported in Nazir Khan v. Bam Mohan : AIR1931All183 it appears to me that the possibility of the pronote having been given as conditional payment was lost sight of. It was pointed out there that a witness stated that the money would not have been lent without the pronote. This could mean that the money would not have been lent unless the terms of the contract had been reduced to the form of a document but it may equally well mean that the money would not have been lent unless there had been a payment by the execution of a negotiable instrument whether that payment be conditional or otherwise. The use of the words 'have been reduced to the form of a document' in Section 91, Evidence Act, in my opinion, denotes that the intention of the parties must have been to put into writing the oral terms of the contract. Section 91 could not apply to every case where terms indistinguishable from the terms of the contract appear in writing. If a pronote may be the result of one of the two quite different intentions, one will have to see what is stated in the plaint for though the document, if unstamped, becomes inadmissible in evidence there may be an admission by the plaintiff that the document alleged to be a pronote, came into existence because of an intention to reduce the terms of the contract to the form of a document and not of an intention to make a conditional or full payment by a negotiable instrument. It appears to me, in view of the admission in the plaint in the present case that the alleged pronote was executed in proof of the debt, that the possibility of the pronote having come into existence because the intention was to create a negotiable instrument for the purpose of payment is excluded. I take the plaint to mean that the intention was to reduce the terms of the contract to the form of a document which in view of the nature of the contract happened to be a form of a negotiable instrument, namely a pronote. In my opinion, therefore, the plaintiff could not prove the loan by oral evidence. The learned Counsel for the appellant has urged that in any case Section 70, Contract Act, would apply and the plaintiff could recover, at any rate, the sum of Rs. 495. The section runs as follows:

Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.

9. This section appears in Chap'. 5 which is headed: 'Of certain relations resembling those created by contract.' The plaintiff has, however, admitted in the plaint that there actually was a contract. What the terms of the contract are he is not entitled to prove. The terms of the contract might be such that they did not entitle him, when he brought the suit, to recover even the amount of Rs. 495. A decree to the effect that he was entitled at the date of the decree to a sum of Rs. 495 from the defendants might be contrary to the terms of the unproved contract which does not become a void agreement because the terms cannot be proved. I am of opinion, therefore, that the suit was correctly dismissed and I would, therefore, dismiss this appeal with costs.

Dar, J.

10. This is an appeal against a judgment and decree, dated 26th January 1938, of the Civil Judge of Azamgarh, by which he affirmed a judgment and decree, dated 9th September 1937, of the Munsif of Mohammadabad Gohna, which dismissed the plaintiff's claim for money lent. The plaintiff, Shep Nath Prasad, alleging that on 3rd March 1934, he had lent a sum of Rs. 495 to Bhaggu Nonia, in proof of which Bhaggu Nonia had executed a promissory note and a receipt of the same date in his favour, and the said loan not having been paid, raised an action in the Court of the Munsif of Mohammadabad Gohna after the death of Bhaggu Nonia against the defendants, Sarju Nonia and Eamdeo Nonia, who are nephew and daughter's son, respectively, of Bhaggu Nonia, for recovery of a sum of Bs. 700 for principal and interest due on the said loan. The Munsif dismissed the claim holding that the promissory note being insufficiently. stamped was inadmissible in evidence and apart from the promissory note the alleged loan could not be proved by any other evidence. This judgment was affirmed in appeal by the Civil Judge of Azamgarh. The plaintiff has now made this second appeal and on account of conflict of judicial opinion which exists on this question the case has been referred to this Bench. Section 91, Evidence Act (1 of 1872) enacts that when the terms of a contract have been reduced to the form of a document, no evidence shall be given in proof of the terms of the contract except the document itself or the secondary evidence of its contents when secondary evidence is allowed by law. Illustration (b) of the said section is as follows: 'If a contract is contained in a bill of exchange, the bill of exchange must be proved.' Section 35, Stamp Act (2 of 1899), enjoins that no instrument chargeable with duty shall be admitted in evidence for any purpose unless the instrument is duly-stamped.

11. It follows that if money is lent under a simple contract and the terms of this contract can be regarded in fact or in law as reduced to the form of a promissory note and the promissory note cannot be admitted in evidence, the loan cannot be recovered apart from the promissory note. But it is also settled law that when the terms of a contract not required by law to be in writing are not wholly but only partially reduced to the form of a document, Section 91, Evidence Act, is no bar to the proof of the contract. And the main controversy centres round the question that when money is lent under a simple contract and in relation to it a promissory note is also given by the borrower to the lender, does the promissory note express wholly or in part or not at all the contract by which the money was lent

12. A loan of money may be described as 'a bailment of specific currency to be returned in specie.' The obligation to return the equivalent sum is implicit in a loan of money and it is its main and essential consideration. If this obligation to return the equivalent sum of money is removed in relation to the giving of a sum of money and is substituted by some other obligation, then the transaction ceases to be a loan. A promissory note, on the other hand, is an undertaking given by one person to pay unconditionally to another person or his order a definite sum of money for consideration received. This consideration may be a dis. charge of a pre existing liability or it may be a contemporaneous cash payment or it may be any other consideration recognised by law and it need not be a loan at all and this undertaking is given with reference to a negotiable instrument and is addressed to the payee and all holders in due course and is governed by and enforced under a separate statute.

13. If in relation to a pre-existing loan or liability a promissory note is given by the debtor to the creditor the promissory note can operate in one of three ways, either as an absolute payment or as a conditional payment or as given by way of collateral security, and whether it operates in one way or the other is a question of fact which falls to be determined on evidence in each case. But in the absence of all evidence the presumption is that it operates as a conditional payment only. It is also settled law that in such a case the promissory note does not express the terms of the original loan or liability, nor does it express the terms upon which it was given and accepted and if the promissory note is dishonoured or is inadmissible in evidence or is not available for any other reason, the original loan or liability can be enforced independently of the promissory note. Does it make any real difference in law if in relation to a loan of money a promissory note is given by the borrower to the lender contemporaneously with the loan as a part of the loan transaction with the avowed object of creating evidence of the loan

14. A sum of money may be given by a payee to the maker of a promissory note not as a loan at all but for the sole purpose of securing the promissory note of the maker. In such a case the promissory note and the sum of money given for its making are the sole consideration of each other and there comes into existence no obligation to return the sum of money independently and apart from the promissory note and the undertaking given in the promissory note and the obligation to return the money stand and fall with the promissory note. But when in relation to a sum of money there is a distinct agreement that it is being given as a loan and contemporaneously a promissory note is also taken as a part and condition of the loan with the avowed object of creating evidence of the loan and in circumstances from which it appears that but for the execution of the promissory note the loan might not have been made, but from which it does not appear that the promissory note was taken in absolute payment of the loan or it was taken for a sum of money which was not given as a loan, the primary and real consideration of the loan in such a case is the return of equivalent sum of money and the delivery of the promissory note is an additional or secondary consideration. The lender in such a case parts with his money on two considerations, the return of the money by the borrower and the execution of the promissory note by the borrower to furnish the evidence of the loan and the promissory note thus given also serves two purposes -- it discharges the loan conditionally or absolutely as the case may be and thus indirectly furnishes evidence of the existence of the loan.

15. It may be that but for the promissory note the loan might not have been made and it may be that the promissory note was taken with the avowed object of creating evidence of the loan. But just as in a case where a promissory note is taken in relation to a pre-existing loan it only operates as a payment and does not express the terms of pre-existing loan or the terms upon which the promissory note was given, similarly in the case where the loan comes into existence contemporaneously with the promissory note the instrument only operates as a payment and the terms of the loan or the terms upon which the instrument was taken do not get themselves reduced to the form of a promissory note. And the fact that but for the promissory note the loan could not have been made and the further fact that the promissory note was executed with the avowed object of furnishing evidence of the loan and the statements made in the pleadings or in evidence about these facts do not mean that the terms of the loan or the terms upon which the promissory note was given were expressed in the promissory note, but they only mean that the promissory note was taken in proof of the loan which proof it furnishes by raising a presumption that the sum of money given for a promissory note was given by way of loan and the promissory note operates as its conditional payment.

16. When in relation to a loan of money a promissory note is given by the borrower to the lender contemporaneously with the loan, the promissory note, no doubt, is a condition of the loan and forms one transaction. The promise to pay the sum of money which the borrower makes and the promise to pay the sum of money which the maker of a negotiable security makes may in a sense be regarded as a complete contract and they are made by the same person and relate to an identical sum of money and if the latter promise is fulfilled its effect is to cancel both the obligations. But the consideration of one promise is the making of loan and the consideration of the other promise is the payment of loan and the two promises are made in two different capacities, one promise is made in the capacity of borrower and the other promise is made by the same person in the capacity of maker of a negotiable security and the terms of one in fact or in the eye of law do not merge in the other and the two promises in fact and in law are and remain distinct promises and the terms of one are not incorporated in the other. The true function of a promissory note in relation to a loan transaction thus seems to be that it furnishes evidence of the loan but it does so not by recording the terms of the loan nor by stating the relation which it bears to the loan but by operating as a payment of loan either absolutely or conditionally as the case may be and in this way through its consideration it establishes by implication the existence of the loan, If for some reason connected with stamp laws the promissory note is held inadmissible and goes out of the case the plaintiff undoubtedly suffers loss of evidence and loss of presumption, but the loan transaction of which the promissory note was the evidence does not thereby get destroyed and it is still open to the plaintiff to prove the loan by such other evidence as he can. The relation which a promissory note bears to a loan of money is thus stated in Chitty on Contracts (Edn. 18) at pp. 652 and 653:

The contract o loan of money differs from bailment in that the actual money lent is not to be re-delivered by the lender, but an equivalent sum is subsequently to be repaid. It is a simple contract not necessarily requiring writing.... In most cases the lender takes an acknowledgment in writing from the borrower and either an I O U or a promissory note or a bond or deed. If the loan is secured by a covenant in a deed, the specialty merges the simple contract, and the lender can only sue on the specialty covenant; if there is a promissory note he will during the currency of the note be estopped from suing otherwise than in accordance with its terms; but after it has become due, he can sue on the note, and add a claim for money lent, and the promissory note may be used as evidence in support of money lent.

17. There is no dispute as to the legal effect of a promissory note in relation to a loan of money. The law on this subject is thus stated in Anson's Law of Contract, (18th Edition) at page 327:

A may take the bill or note, and promise, in consideration of it, expressly or impliedly to discharge X altogether from his existing liabilities. In such a case he relies upon his rights conferred by the instrument, and, if it be dishonoured, must sue on it, and cannot revert to the original cause of action. But the presumption, where a negotiable instrument is taken in lieu of a money payment, is, that the parties intended it to be a conditional discharge only.

18. And the statement of law on this subject is as follows in Halsbury's Laws of England (Hailsham edition) in Vol. I at p. 42 and in vol. VII at page 242, respectively:

Where a negotiable instrument is taken by a creditor, not in full satisfaction, but merely on account of a simple contract debt, it operates as a conditional payment thereof. His right of action is suspended during the currency o the instrument, and the instrument affords a good defence to an action brought before it matures. If the instrument is honoured in its entirety or in part, the debt is paid and satisfied wholly or pro tanto. If however it is dishonoured on maturity or only partly paid, the debt or the balance may then be recovered by action.

If a bill of exchange or note be taken on account of a debt, and nothing be said at the time, the legal effect of the transaction is that the original debt remains, but the remedy for it is suspended till the maturity of the instrument in the hands of the creditor. If the security is paid when it becomes due, this is equivalent to payment of the original debt; and if it is paid in part, the original debt is discharged pro tanto. If the instrument is dishonoured, payment of the original debt may be enforced as if no security had been taken, unless the bill has been negotiated and is outstanding at the time of action brought in the hands of a third party, in which case the creditor's remedy continues to be suspended.

19. The remedy which is open to a person who has lent money under a promissory note is thus described in Byles on Bills (19th Edition) at page 331:

When a bill is dishonoured the holder may at his option sue on the bill, or when the action is between immediate parties, on the consideration. . . . But it is advisable to sue on the bill; first, because it reduces the debt to a certainty; secondly, because less evidence is necessary; thirdly, because in an action on the bill proof of payment of the bill lies on the defendant; but in an action on the consideration only, if the defendant shows that a bill was given, the plaintiff must prove that the bill was not paid.

20. In Payana Keena Saminathan v. Pana Lana Palaniappa Ghetty ('13) 17 N.L.R. 56, a promissory note was given in lieu of a liability which was created contemporaneously by an award and the action on the promissory note failed on the ground of material alteration in the promissory note. Thereafter when a second action was raised for recovery of the money due on the award, Lord Moulton treated the debt and the promissory note as constituting two separate and independent causes of action and the plaintiff was allowed to recover on original consideration. In Sadasukh Janki Das V. Maharaja Sir Kishan Pershad (18) 5 A.I.R. 1918 P. C. 146 the action; was raised on hundis and it failed because its due. execution could not be proved. But Lord Buckmaster in delivering the opinion of the Board observed:

It would, of course, have been open to the plaintiffs had they thought fit to have framed their case in an alternative form, and to have sued both on the hundis and alternatively upon the consideration.

21. There is no doubt high authority for the view that the English law on this subject is not applicable to this country. It is said that the best evidence rule which is enacted in Section 91, Indian Evidence Act, is much more stringent than the Judge-made rule of best evidence in England. It is also said that in England there is reluctance both at the Bar and on the Bench to sustain objections based on stamp laws, but the Indian Statute has left no choice to the Judges. It is also said that the cases in support of the English law are cases not of contemporaneous transactions but of promissory notes given for preexisting liabilities and it is said that the Privy Council in making the above observations had not before them the terms of Section 91, Indian Evidence Act, or its corresponding provisions. With greatest possible respect I cannot accept this view. In my opinion, the English law when it allows the original consideration to be proved in a case where the promissory note goes out for want of proper stamp does not in any way infringe the best evidence rule as it is enacted in Section 91, Indian Evidence Act. It proceeds upon the view that the two contracts of loan and of promissory note are separate transactions and furnish separate causes of action and the terms of the one are not expressed in the other and this is also the basis of the decision of the Privy Council. It will be a fruitless endeavour to notice or comment on all the cases which have gathered round this controversy during the last sixty years ever since Sir Richard Garth enunciated the two following propositions in Sheikh Akbar v. Sheikh, Khan ('81) 7 Cal. 236:

1. When a cause of action for money is once complete in itself, whether for goods sold, or for money lent, or for any other claim, and the debtor then gives a bill or note to the creditor for payment of the money at a future time, the creditor if the bill or note is not paid at maturity, may always, as a rule, sue for the original consideration, provided that he has not endorsed or lost or parted with the bill or note, under such circumstances as to make the debtor liable upon it to some third person. In such cases the bill or note is said to be taken by the creditor on account of the debt, and if it is not paid at maturity, the creditor may disregard the bill or note and sue for the original consideration.

2. But when the original cause of action is the bill or the note itself, and does not exist independently of it, as for instance, when, in consideration of A depositing money with B, B contracts by a pro-missory note to repay it with interest at six months' date, here there is no cause of action for money lent, or otherwise than upon the note itself, because the deposit is made upon the terms contained in the note, and no other. In such a case .the note is the only contract between the parties, and, if for want of a proper stamp or some other reason the note is not admissible in evidence, the creditor must lose his money.

22. Soon after this case was decided, Sir W. C. Petheram, C. J. pointed out in Pramatha Nath Sandal v. Dwarka Nath Dey ('96)23 Cal. 851, that in the second proposition Sir Richard Garth was not referring to a promissory note in relation to a loan of money but in relation to a deposit or other consideration which is not a loan. After quoting the second proposition, Petheram C. J. observed at page 853:

These words, taken alone, may seem to indicate that when a bill or note is taken for a debt the action must be brought upon the bill or note; and that if for any reason the document is excluded, the action must fail; but a reference to the earlier portion of the judgment shows that such was not the meaning of the Chief Justice, and that when he spoke of a deposit he did not mean a. loan, as he then says where money is lent and a bill or note given for the loan which is not paid at maturity, the creditor may disregard the note and sue on the original consideration.

23. In my opinion, in the first proposition of Sir Richard Garth where he states 'and the debtor then gives a bill,' the word 'then' is unnecessary and is liable to be misunderstood and it should be deleted from the first proposition; and the second proposition of Sir Richard Garth should not be applied to a loan transaction at all and the word 'deposit' used therein should be limited to those cases where a sum of money is given for the consideration of a promissory note but not as a loan. Maung Chitv. Boshan N.M.A. Kareem Oomer & Co. ('34) 21 A.I.R. 1934 Rang. 389, Sir Arthur Page C. J. has again stated the law on this subject in the form of six propositions of which the fourth and the sixth are as follows:

(4) If a promissory note or other negotiable instrument is given by the borrower to the lender and the negotiable instrument is itself the consideration for the loan, or if the promissory note or other negotiable instrument is accepted as an accord and satisfaction of the original debt, the lender is restricted to his rights under the negotiable instrument, by which he must stand or fall; for in the one case the note or bill is itself the original consideration, and in the other the original debt has been liquidated by the acceptance of the negotiable instrument.

(6) Further, if the terms of the agreement (by which I mean the whole of the terms) under which the loan was made have been embodied in a negotiable instrument or in any other document no evidence can be adduced in proof of the terms of the contract except the document itself, or secondary evidence of the contents of the document in cases in which secondary evidence thereof is admissible. It follows therefore that in such cases if the document which contains the whole of the terms of the agreement is not admissible in evidence a suit to recover the amount of the loan must fail, because the plaintiff is not in a position to prove the debt.

24. The Madras High Court in Perumal Ohettiar v. Kamakshi Ammal ('38) 25 A. I. R. 1938 Mad. 785 has practically concurred with this statement of law by Sir Arthur Page C. J, except in one particular which is contained in proposition No. 3. The view at Rangoon is that in a contemporaneous promissory note with the loan there is a presumption of a conditional payment. The Madras High Court does not recognise this presumption and according to it is a question of fact in each case and the lender has to prove it. But both the Courts proceed upon the view J that some of the terms of the loan are expressed in the promissory note in a contemporaneous loan transaction. With utmost respect, I find myself unable to subscribe to this view. In my opinion, the terms of the loan are not at all expressed in the promissory note and in all cases where a promissory note is given in relation to a contemporaneous loan it should be presumed as a matter of law that it was in conditional payment till the presumption is rebutted by evidence in the case, and the first portion of the fourth and sixth propositions of Sir Arthur Page C. J. does not correctly state the law. For the same reasons I would hold that illust (b) of Section 91, Evidence Act, does not refer to a contract of loan of money and it can only apply when the bill of exchange is in consideration of a sum of money which is not given as a loan.

25. In my opinion, the law on the subject may thus be stated. When a promissory note was given in consideration of a sum of money it is a question of fact in each case whether the sum of money was given as a loan or not as a loan; in the absence of all evidence the presumption is that it was given by way of a loan; and there is a further presumption that the promissory note was given in conditional payment of the loan. If by reason of the defect of stamp the promissory note is held inadmissible in evidence, it is open to the plaintiff to prove the loan and all its terms and to recover the loan irrespective and independently of the promissory note by giving other evidence including that furnished by a contemporaneous receipt, if there be any. It is for the defendant to prove that the promissory note was given for a sum of money which was not given as a loan or it was given in absolute satisfaction of the loan or the plaintiff has made it his own by his agreement or by his conduct. If the defendant succeeds in proving any of these facts the plaintiff shall be restricted to the promissory note and he shall not be allowed to recover independently of the promissory note. In the view which I have taken of the case, it is not necessary to express any opinion on the question whether money given under a promissory note which is inadmissible in evidence for insufficiency of stamp can be recovered under Section 70, Contract Act, (9 of 1872).

26. In Kundan Lal v. Bhikari Das : AIR1929All254 and in Kunwar Baha-dur v. Suraj Baksh ('32) 19 A.I.R. 1932 Oudh 235 at p. 668, Sir Shah Sulaiman C. J., and Sir Wazir Hasan C. J. respectively, have expressed the view that money could be recovered under Section 70, Contract Act. And in Baij Nath Das v. Salig Ram ('12) 16 I. C. 33 (All.), Karamat Husain and Tudball 33., have expressed the view that money could be recovered as money had and received. On the other hand, in Perumal Ohettiar v. Kamakshi Ammal ('38) 25 A. I. R. 1938 Mad. 785 at p.961, Sir Srinavas Varadachariar has expressed the view that money could not be recovered either as money had and received or on the ground of failure of consideration or under Section 70, Contract Act. If money could be traced, it could be recovered on title; this does not admit of any doubt. But whether money can be recovered on an obligation and apart from title raises highly controversial issues. It is contended, on one side, that there can be no obligation under Section 70, Contract Act, when there is an express obligation under a contract which still subsists though it cannot be proved in a Court of law and that implied contract under Section 70 cannot be imported where express contract is not possible. On the other side, it is contended that the basis of obligation under Section 70, Contract Act, is not a consensual obligation by a fiction of law but its true basis is the unjustifiable enrichment of the defendant.

27. The merits of the case are plain enough. A sum of money was handed over to the defendant by the plaintiff on an understanding that a proper promissory note will be delivered to him. The defendant delivered instead of a promissory note a waste paper which on account of stamp law cannot be produced in evidence and cannot be enforced. But it is too late in the day to hold that because it is right and proper for the defendant not to keep the money, there is any legal obligation upon him to return it, and the obligation will have to be founded on some definite legal principle under Section 70, Contract Act. There is a view that obligation in such cases should not be put on contractual basis, express or implied, but should be placed on the basis of unjustifiable enrichment. And recently Lord Wright has lent his support to this view in Brooks Wharf and Bull Wharf Limited v. Goodman Brothers (1937) 1 K. B. 534 at p. 545 and has observed as follows:

These statements of the principle do not put the obligation on any ground of implied contract or of constructive or notional contract. The obligation is imposed by the Court simply under the circumstances of the case and on what the Court decides is just and reasonable, having regard to the relationship of the parties. It is a debt or obligation constituted by the act of the law, apart from any consent or intention of the parties or any privity of contract.

28. If the doctrine of unjustifiable enrichment is to be applied to such cases under Section 70, Contract Act, it will have to be on the basis of either the failure of consideration or the contract ceasing to exist, and there are difficulties in applying both these considerations, to this controversy. The result is that the plaintiff is entitled to prove the alleged loan by other evidence. Whether he has done so or not is the last matter which remains for our consideration. At the time of the alleged loan, the plaintiff was a raw and inexperienced youth aged about eighteen years and he was living as a junior member of joint Hindu family with his father who carried on an extensive joint family business. Admittedly there is no entry in support of this loan in the family account books. The plaintiff stated that he carried on a personal money-lending business on a small scale from some money which he had received from his other relations separately from the joint family business and of which he kepi no account and no. record and the loan in dispute was a part of that business.

29. There is no reliable evidence in support of this personal business. The fact that no action was raised for the recovery of this loan during the life-time of Bhaggu Nonia and the fact that the promissory note at the time of execution bore only one stamp of one anna and was not a normal promissory note and material alterations were made in the promissory note before it was produced in Court are further matters which cast doubt upon genuineness of the plaintiff's story. It is true that the trial Court has in a way rejected the defence case that Bhaggu Nonia was in service with the plaintiff's father and the promissory note was given in blank to secure the due performance of a service engagement and it has expressed itself in favour of the view that the consideration of the promissory note was a cash payment. But the Court of appeal has not addressed itself on these questions and it is, therefore, proper and necessary for us to review the evidence and to examine the findings of the trial Court on their merits. (After reviewing the evidence his Lordship proceeded.) On the whole, therefore, I have come to the conclusion that the plaintiff has failed to establish by reliable evidence that any loan was made to Bhaggu Nonia as alleged and on this ground the decree of the Courts below should be affirmed and the appeal be dismissed with costs.

Mathur, J.

30. This is a plaintiff's second appeal directed against a judgment of the learned Civil Judge of Azamgarh, dated 26th January 1938 by which he confirmed a decree of the Munsif of Mohammadabad Gohna, dated 9th September 1937. The plaintiff-appellant raised an action to recover a sum of Rs. 700 principal and interest on the allegations that Bhaggu Nonia who is now represented by the defendants respondents borrowed a sum of Rs. 495 from him bearing interest at the rate of Re. 1-4-0 per cent, per mensem on 3rd March 1934, and in proof of the debt got a note of hand together with a receipt executed, put his signatures and thumb-impressions on them and handed them over to the plaintiff. It was further stated that the defendants did not pay a single shell towards the principal and interest in spite of the demands on behalf of the plaintiff and, therefore, he had to raise that action. The cause of action was said to have arisen on 3rd March 1934, the date on which the debt was borrowed and the note of hand was executed and also in February 1937 when the last demand was made and the defendants refused to pay the amount. On the first date of hearing, defendant 2 who is the daughter's son of Bhaggu Nonia was absent and the suit was contested only by defendant 1 who is a nephew of the said-Bhaggu Nonia merely on the ground that he was not a legal heir of the deceased, Bhaggu Nonia and was not in possession of any of his assets. The learned Additional Munsif who tried the ease held that the contending defendant was in possession of the deceased's tenancy land and, therefore, decreed the suit, the decree against defendant 2 being ex parto. Later on, on the application of defendant 2, namely, Ramdeo Nonia the ex parte decree was set aside and the case was reheard. On this occasion the defence was that no promissory note was executed and no consideration passed. It was alleged that Bhaggu Nonia was in service of Sundar Lal, the father of the plaintiff and was employed to realise rents and that as a security of his good faith he had placed a blank form of pronote and receipt bearing his signatures and one-anna stamp with the plaintiff's father. It was further pleaded that as pronote was not properly stamped it could not be admitted in evidence. The defendant also claimed to be an agriculturist and claimed the benefit of the provisions of Section 32, Agriculturists' Belief Act. The learned Munsif framed four issues and his findings were that the allegation of the defendant that a blank form of pronote and receipt was given was false and that as a matter of fact, the consideration passed. He however came to a finding that the pro-note was not sufficiently stamped and holding that the loan being not independent of the pronote, the pronote could not be admitted in evidence, he dismissed the claim. His findings about the provisions of the Agriculturists' Relief Act were that as the plaintiff was not a creditor, that Act did not apply.

31. The plaintiff filed an appeal and the learned civil Judge of Azamgarh agreed with the learned Munsif that the pronote was insufficiently stamped and confirmed the decree of the learned Munsif dismissing the plaintiff's suit. The plaintiff filed this second appeal and it came up* for hearing before Collister J. who has referred it to a Pull Bench. It may be mentioned here that there is already a three Judge Pull Bench case of this Court, Nazir Khan v. Bam Mohan : AIR1931All183 but having regard to the authorities of the other High Courts holding a contrary view, Collister J. thought it proper that the question may be reconsidered by a larger Bench. I would start with examining the Pull Bench case in Nazir Khan v. Bam Mohan : AIR1931All183 which was decided by Sir Grimwood Mears C. J. and Mukherji and Young JJ. Their Lordships adopted the dictum of Garth C. J. in Sheikh Akbar v. Sheikh, Khan ('81) 7 Cal. 236, where he laid down:

When a cause of action for money is once complete in itself, whether for goods sold or for money lent or for any other claim, and the debtor then gives a bill or note to the creditor for payment of the money at a future time, the creditor, if the bill or note is not paid at maturity, may always, as a rule, sue for the original consideration, provided that he has not endorsed or lost or parted with the bill or note under such circumstances as to make the debtor liable upon it to some third person.

32. Their Lordships laid particular stress on the word 'then' occurring in the passage and remarked:

The whole point of Garth C. J. was that evidence altitude could be given only if the transaction of the promissory note could be separated from a previously completed transaction.

33. This Pull Bench ruling has, however, been generally followed in this Court and in the Courts subordinate in every case in which the pronote was found to be inadmissible, without taking into consideration the fact whether the pronote contained the entire terms of the contract or not. In my opinion, this is a mistaken view and I will refer to the point of law as it was stated for the consideration of the Full Bench. It was in these terms:

Whether it is open to the party who has lent money on terms recorded in a promissory note, which turns out to be inadmissible in evidence for want of proper stamp duty, to recover his money by proving' orally the terms of the contract, in the teeth of the provisions of Section 91, Evidence Act.

34. The plaintiffs' case in Nazir Khan v. Bam Mohan : AIR1931All183 was that the entire terms of the contract were embodied in the promissory note and, therefore, the point did not arise in that case as to what would happen if the entire terms were not contained in the promissory note. In this view of the matter, if I may say so with respect, the case in Nazir Khan v. Bam Mohan : AIR1931All183 was rightly decided by the Full Bench. I may, however, point out that I do not agree with the reasoning of the Full Bench that different results would follow in cases where the payment of the loan and execution of the promissory note is simultaneous and the cases in which the promissory note is executed subsequently to the passing of the loan. I would develop this point at a later stage. I find that there is ample authority for the proposition that if all the terms of the contract are not contained in the pronote oral evidence could always be given to prove these terms. I may, in this connexion, refer to the Privy Council case in Mohammad Akbar Khan v. Attar Singh ('36) 23 A.I.R 1936 P. C. 171 in which the judgment was delivered by Lord Atkin. At p. 991, his Lordship remarked:

The further objection to the admissibility of the document was that it recorded the terms of a contract reduced to the form of this document and that under Sections 91 and 92, Evidence Act, no oral evidence was admissible to contradict, vary, add to, or subtract from its terms. The answer is that the document does not record or purport to record all the terms of the contract between the parties.

35. The same view was taken by a Division Bench of this Court in Kundan Lal v. Bhikari Das : AIR1929All254 , The case was decided by Sulaiman and Kendall JJ. This case was decided before the Full Bench case in Nazir Khan v. Bam Mohan : AIR1931All183 , but has not been referred to in the judgment of the Full Bench. It clearly lays down that where whole of the contract was not embodied in the hundis which were the basis of suit in that case other evidence could be admissible. I do not think I need burden my judgment with any further authorities on this point as the proposition appears to have been generally accepted by all the High Courts. The next point which is in controversy is as to whether it would be permissible to look at the document for the sake of determining if it contained all the terms of the contract after the document has been held to be inadmissible in evidence for want of a proper stamp under Section 35, Stamp Act. My answer to this would be in the affirmative and I am fortified in this view by the pronouncement of that eminent Judge, Sir Asutosh Mookerjee in Ram Bahadur v. Dasuri Ram ('13) 17 C.L.J. 399. It is no doubt true that the case reported in Ram Bahadur v. Dasuri Ram ('13) 17 C.L.J. 399, was not one in which the document was held to be inadmissible under Section 35, Stamp Act, but it was inadmissible under Section 10B, Court of Wards Act, 1879, which contains a provision similar g to that of Section 35, Stamp Act. The learned Judge made the following observations:

The learned vakil for the respondent has ingeniously suggested that as the instrument itself must be held inadmissible, there is no proof that the terms of the contract for payment of interest were reduced to writing. This argument is obviously fallacious. The written instrument may be looked at for the purpose of showing that the terms of the contract for payment of interest had been reduced to writing within the meaning of Section 91, Evidence Act, or oral evidence may be given to show that the contract, as a matter of fact, was reduced to writing.

36. Independently of this ruling, I think the reasonable view would be that the document can be looked into in order to determine whether it contained all the terms of the contract or not. In order to make Section 91 applicable there would always be a conflict between the plaintiff and the defendant. The former would urge that it does not contain all the terms; while the contention of the latter would be the contrary. I do not think that it would be proper to allow the parties to give oral evidence on that point when the document itself is available. It is no doubt true that the wordings of Section 35, Stamp Act, are 'no instrument chargeable with duty shall be admitted in evidence for any purpose.... Unless such instrument is duty stamped.' It has been suggested that the effect of this section would be that the document when it is not duly stamped must be treated as it never existed on the record. With due deference to the supporters o this view I must say that it is not correct. Even the question whether it was stamped or not has to be gone into by different Courts and those Courts have to look into the document itself for the purpose of deciding about the sufficiency of the stamp or otherwise. Then my view is that the words 'shall be admitted in evidence' only mean that the document shall not be made the basis of the decision or that it shall not be relied on to support any finding, but to look at the document merely for the purpose of finding out whether it contained all the terms or not (in order to attract the provisions of Section 91, Evidence Act) would not be really admitting it in evidence. In this view of the matter, I think it must be held that if the Court finds on inspection of the document that it does not contain all the terms of the contract it can allow the plaintiff to adduce oral evidence as in that case, the provisions of Section 91, Evidence Act, are no bar. I may, at this stage, point out that a pronote rarely, if ever, contains all the terms of the contract between the parties. Page C. J. in the Full Bench case in Maung Chitv. Boshan N.M.A. Kareem Oomer & Co. ('34) 21 A.I.R. 1934 Rang. 389 is stated to have expressed himself on this point in the following words:

Now, in my experience it rarely, if ever, happens that the whole of the terms of the agreement under which a loan is made are embodied in a promissory note or other negotiable instrument given to the lender by the borrower except in cases in which the parties contract that the negotiable instrument shall itself be the consideration for the loan, and the lender is content to accept the negotiable instrument in satisfaction of the debt whether or not the negotiable instrument is dishonoured at maturity or is otherwise unenforceable. In cases in which the parties agree that the negotiable instrument shall be taken as conditional payment only and not in accord and satisfaction of the original debt, I have myself never known or heard of an instance in which that term of the agreement has been embodied in the negotiable instrument.

37. This remark of Page C. J. has been criticised by Sir Varadachariar in his judgment in the Pull Bench case in Perumal Ohettiar v. Kamakshi Ammal ('38) 25 A. I. R. 1938 Mad. 785 in the following words:

With the like respect I must add that my experience does not coincide with what the learned Chief Justice states on p. 508 to be his experience that 'it rarely, if ever, happens that the whole of the terms of the agreement under which a loan is made are embodied in a promissory note given to the lender by the borrower except in cases .in which the parties contract that the negotiable instrument shall itself foe the consideration for the loan' if, as later observations in the judgment imply, a. promissory note cannot according to the learned Judge, be reasonably presumed to have been taken as 'consideration' for the loan, I am free to confess some difficulty in understanding what the learned Chief Justice had in mind when he postulated the possibility of a promissory note by the borrower being 'consideration' for the loan as distinguished from the 'contract' of loan.

38. I may here refer to the definition of a 'promissory note' as given in Section 4, Negotiable Instruments Act, together with illustrations appended to it in order to make out the point that ordinarily a pronote does not contain all the terms of the contract. Section 4 Negotiable Instruments Act, runs thus:

A 'promissory note' is an instrument in writing (not being a bank-note or a currency-note) containing an unconditional undertaking, signed by the maker, to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument.

39. Then the illustrations (a) to (h) follow but the section lays down that the instruments respectively marked (a) and (b) are promissory notes; while those marked (c) to (h) are not promissory notes. Illustrations (a) and (b) are as follows:

(a) I promise to pay B or other Rs. 500. (b) I acknowledge myself to be indebted to B in Rs. 1000, to be paid on demand, for value received.

40. It will be noticed that in both these illustrations all the terms of the contract are not embodied, for example, it is not known for what consideration the amount was to be paid in each case. It may have been for the goods sold or services rendered or possibly a repayment of a loan or for hundred other considerations. What I mean to say is that a promissory note is generally a unilateral agreement containing an unconditional undertaking to pay a certain sum of money but gives no indication to the agreement or sets of agreements which may be reciprocal or otherwise and entered into by other party. It is no doubt true that in certain cases a promissory note may contain all the terms of the contract but it would be an exception and not the rule. In this connation, I may quote the observations made by Sulaiman and Kendall JJ. in Kundan Lal v. Bhikari Das : AIR1929All254 :

On the other hand, from the mere fact that a bill of exchange or hundi has been executed it does not necessarily follow that the whole of the contract between the parties has been reduced to the form of such a document. A hundi is principally a written promise to pay a fixed amount on or after a certain date. It does not necessarily contain all the terms of the agreement between the parties as a bond, for instance, would do. In many cases a promissory note or a hundi may merely be a written security taken for the loan. The promise to pay the amount may be only a part of the whole contract between the parties in which case it cannot be said that that contract has been reduced to the form of a hundi.

41. In the Full Bench case from Oudh, Kunwar Baha-dur v. Suraj Baksh ('32) 19 A.I.R. 1932 Oudh 235, it was held that in apite of the provisions of Section 91, Evidence Act, oral evidence could be led to prove the advance of a loan when the promissory note was inadmissible in evidence for want of proper stamp duty. The main judgment, in this case, was delivered by Srivastava J. which was agreed to by Sir Wazir Hasan C. J. but on very different grounds. The third Judge, Baza J. only recorded his concurrence. Srivastava J. in my humble opinion, rightly laid down that Section 91 excluded parole evidence about the terms but not about the factum of the contract. But with due deference to him, I. must say that he unduly stretched the point when he stated:

I find it difficult to understand bow the fact of the advance of the loan or the amount of the loan can be regarded as one of the terms of the pronote.

42. As I look at the matter, I think that amount of the loan is certainly one of the terms of the contract as would be the manner or the time of its repayment. Then his Lordship further observed:

I have no manner of doubt that there is nothing in Section 91 to prevent the plaintiff from giving evidence to prove that at the time of the transaction the plaintiff paid a sum of Rupees 700 in cash to the defendant.

43. I think if this were allowed it would make Section 91 absolutely nugatory. Sir Wazir Hasan C. J. has based his conclusions on the provisions of Section 70, Contract Act, 1872, which runs as follows:

Where a person lawfully does anything for another person, or delivers anything to him not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.

44. His opinion was that the payment of the amount by the plaintiff to the defendant at the latter's request was a lawful act not in-tended to be done gratuitously by the plaintiff and, therefore, the defendant was bound to make compensation to the plaintiff in respect of the payment. With all respect to the Hon'ble Judge, I must hold that Section 70 does not contemplate the case of payment of money and it will be doing violence to the language of the section to hold that the words 'lawfully does anything' mean payment of money. Sulaiman and Kendall JJ. also applied Section 70, Contract Act, in Kundan Lal v. Bhikari Das : AIR1929All254 . There was no discussion on the section and the learned Judges contented themselves by making the following remarks:

We further think that even if the plaintiffs were not able to prove the whole contract by this additional evidence, they could succeed if their suit were treated as one for recovery of the amount' had and received, or for compensation for the amount paid by them on behalf of the defendants to the creditor of the latter under Section 70, Contract Act.

45. In the Full Bench case in Perumal Ohettiar v. Kamakshi Ammal ('38) 25 A. I. R. 1938 Mad. 785 Sir Varadachariar summarily disposed of the point in the following few words at p. 794:

It only remains to add that Section 70, Contract Act, which has sometimes been appealed to, is scarcely appropriate to a case of money lent to the defendant. There is no possibility in such a case or even a comtemplation of the 'thing delivered' being restored -- which obviously means in specie and lending money to the defendant cannot be described as something done for the defendant.

46. I find myself entirely in accordance with the view expressed by Sir Varadachariar. Reverting again to the Full Bench case in Nazir Khan v. Bam Mohan : AIR1931All183 , I may point out with very great respect to the learned Judges who decided that case that the distinction laid down between cases where the money passed contemporaneously with the execution of the pronote and where it was antecedent in time to the latter is really unreal and artificial. I cannot do better than to refer to the criticism of Sir Wazir Hasan C. J. on this aspect of the case in Kunwar Baha-dur v. Suraj Baksh ('32) 19 A.I.R. 1932 Oudh 235 at p. 241:

The analogy of 'antecedent debt' applied in Nazir Khan v. Bam Mohan : AIR1931All183 seems to me with due respect wholly misleading. The expression 'antecedent debt' is altogether a creature of case law and the observations of their Lordships of the Judicial Committee in Brij Narain v. Mangla Prasad ('24) 11 A. I. R. 1924 P. C. 50 to the effect that to constitute a valid antecedent debt there must be antecedency both in time and in fact have no application in my opinion to a ease of this nature. An oral contract of loan may be wholly or partly executed as soon as it is completed and the parties may choose to reduce it to-writing after a long interval of time. But once it is reduced to writing the only evidence, admissible in proof of it is the writing. The written contract therefore wholly displaces the oral contract in so far as the manner of proof is concerned.

47. It may be noted that the learned Judge had in mind that the entire contract was reduced to the form of a written contract. In Somabhai Naranbhai v. Kal-yanbhai Kashibhai ('38) 25 A. I. B. 1938 Bom. 286, Rangnekar J. has argued out the point in the following words at page 288:

Supposing the loan is made at 10 o'clock, and parties separate and five minutes after that the creditor comes to the debtor and says 'I want a promissory note,' and the debtor executes a promissory note, then it can be said that the loan was independent of the promissory note. But if the loan is made at 10 o'clock, and exactly at 10 o'clock the promissory note is taken, then it is said that it is a simultaneous transaction and therefore if you cannot sue on the promissory note, because it is not properly stamped then your suit must fail, as both formed part of the same transaction. I am unable to appreciate the distinction.

48. There has been discussion at the Bar as to whether the plaintiff can sue on the original consideration in case the promissory note was not admissible in evidence for want of sufficiency of stamp and also whether such a suit will be for money had and received and rulings have been cited both in support of and against the contentions. I do not propose to discuss those rulings as in my opinion, the point does not arise in the present case and I do not feel it necessary to go into these questions. Applying the law, as I understand it, to the facts of this case, it seems to me that on looking at the pronote in suit and at the pleadings as contained in the plaint it would be possible to say that the pronote did not contain all the terms of the contract. To make my point clear I should say that while the pronote only lays down an undertaking to pay the sum of Es. 495 to the plaintiff or his order at a certain interest on demand it does not mention what was the consideration of that payment. It is only by looking at the receipt that one comes to the conclusion that the money was advanced to Bhaggu Nonia, an ancestor of the defendant. It is thus the two documents pronote and receipt and not the pronote itself that contain all the terms of the contract.

49. In these circumstances, according to my View, oral evidence will be admissible to prove the plaintiff's claim. The learned Munsif held that the plaintiff's case was proved that he advanced the money to Bhaggu Nonia and that the defendant's case that the money was not advanced and that only a blank form of the pronote and receipt was handed over to the plaintiff as security was not proved. The learned Civil Judge who decided the appeal has not given any finding on this point. Ordinarily in such a case it would be proper to send the case back for findings of the learned Civil Judge but as the case has now been before the Courts for close upon six years I would prefer to go into the evidence myself and to come to a finding. On going through the evidence and the circumstances of the case I have grave doubts about the genuineness of the plaintiff's case. The plaintiff was only a lad of 18 or 20 years at the time the loan is said to have been advanced and had no independent means for advancing the loan. His father is still alive, at any rate, he was alive at the time when the suit was instituted and it seems to me that the pronote was executed in favour of the plaintiff in order to meet the defence that Bhaggu Nonia was in service of the plaintiff's father and had given the blank pronote only as a security for his honesty. Having regard to all these circumstances, I would agree with the two lower Courts in dismissing the suit although on different grounds. I would therefore dismiss the appeal with costs.

50. This appeal is dismissed with costs.


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