H.G. Richards, C.J. and Banerji, J.
1. This appeal arises out of a suit in which the plaintiff sought to recover certain money. A portion of the money was due upon accounts pure and simple for goods sold. Another portion of it the plaintiff claimed as having been advanced by him to the defendant and for which a certain document, alleged to be a promissory note, was passed. The claim is then made for Rs. 35-11-6 the price of cloth; Rs. 400 principal and Rs. 140-6-0 interest, that is, Rs. 540-6-0, in respect of a cash debt, in all Rs. 576-1-6, due under account books together with the costs of the suit and future interest. It will thus be seen that the plaintiff bases his claim upon his account books, and it is a claim for money lent. When the document to which we have referred was produced, it appears that the stamp was cancelled by means of two lines drawn crosswise upon it.
2. The court of first instance decreed the plaintiff's claim, but holding that the stamp was not effectively cancelled, allowed other evidence, including the account books, to be given as evidence of the loan. The document, which it held to amount to a promissory note, was excluded from evidence.
3. The defendants appealed, and the lower appellate court, adopting the view of the court of first instance that the document was a promissory note and that the stamp was not effectively cancelled, refused to allow the plaintiff's claim, except for the price of the cloth and reduced the decree of the court of first instance accordingly.
4. The plaintiff comes here in second appeal. As to whether or not the stamp was effectually cancelled, we offer no opinion.
5. The appellant has not raised the question specifically in his memorandum of appeal.
6. The next point which was discussed was whether the document in question was a promissory note, within the meaning of the Stamp Act of 1899. On the face of it, it is a request for the loan of money with a promise to repay the loan with interest. In the view that we take of the case, it does not become necessary to decide whether or not the document is a promissory note within the meaning of the Act. We shall, therefore, assume for the purposes of our decision, first, that the document in question amounted to a promissory note; secondly, that the stamp on it, although sufficient, was not effectually cancelled; and, thirdly, that the taking of the loan and the giving of the note were simultaneous transactions. The appellant contends that even on all these assumptions, he is (provided he can prove that the money was lent without the help of the note), entitled to succeed in his claim not only for the price of the cloth but also for the money, claiming it as he does, as money lent. The evidence that the money was in fact lent is overwhelming and is not disputed in the present appeal. We, therefore, have only to decide whether on the assumptions that we have made the plaintiff must fail notwithstanding that the money was in truth and in fact duly lent.
7. The defendants strongly rely on the case of Sheikh Akbar v. Sheikh Khan (1881) I.L.R. 7 Calc 256. The learned Counsel for the defendants admits that in ordinary cases where, for instance, a plaintiff took a promissory note for the price of goods sold and delivered, if he failed for any reason on his note, he would be entitled to fall back upon the original consideration, namely the price of goods so delivered, provided that he was able to prove the delivery of the goods, and that such a claim was open to him upon the pleadings. In like manner, of course, he concedes that if the money was lent and subsequently a note was given for the amount, the plaintiff failing on the note would be entitled to fall back upon a claim for money lent. He, however, contends that where the lending of the money and the taking of the note was a simultaneous transaction, and the parties all along contemplated that the loan should be secured by the giving and the receiving of the note, the plaintiff must stand or fall by the claim based upon the promissory note, and that if he is unable to give the note in evidence the whole suit fails. For this purpose he relies, as we have stated above, upon the case of Sheikh Akbar v. Sheikh Khan.
8. The facts in that case were somewhat peculiar. But (here is no doubt that the giving of the note was the consideration for the deposit of a certain sum of money by the plaintiff. Garth, C. J., in holding that the plaintiff must stand or fall by his claim on his promissory note, says as follows (at page 260 of the Report) :--'But when the original cause of action is the bill or 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 promissory 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.'
9. It is contended that what the learned Chief Justice meant was that wherever a loan and the giving of a note are simultaneous, the plaintiff cannot fall back upon his claim for money lent. If this be the view of the learned Chief Justice, we are unable to agree with him. As far back as the year 1800, Lord Kenyon, in the ease of Farr v. Price (1800) 1 East 55 (57) after holding that the plaintiff could not succeed on a promissory note on the ground of an error in the stamp observed that ' as there were other general counts in the declaration, if the plaintiff could give other evidence of a consideration paid by him to the defendants, he would not be concluded from recovering by the fact of the defendants having given this imperfect promissory note for it.'
10. There is a footnote to the report as follows:--' Where a promissory note had been given for money lent but when produced in court was unstamped, Lord KENYON, 'Chief Justice, permitted the plaintiff to recover on a common count for money lent by proving that when the money for which the loan had been given was demanded of the defendant he acknowledged the debt'
11. The case of Sheikh Akbar v. Sheikh Khan was considered in Pramatha Nath Sandal v. Duarka Nath Dey (1896) I.L.R. 23 Calc. 851. There, as in the present case, a promissory note had been given for money lent, but the note was insufficiently stamped, and was therefore inadmissible in evidence. It was held that the plaintiff had a cause of action independently of the document. Petheram, C.J., says (at page 853 of the Report):--' The case which has been relied upon by the defendant is that of Sheikh Akbar v. Sheikh Khan.' The learned Chief Justice then quotes the passage from the Judgment of Garth, C. J., which we have mentioned above and proceeds :--'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.'
12. In the case of Krishnaji Narayan Parkhi v. Rajmal Manikchand Marwari (1899) I.L.R. 24 Bom. 860 where the suit was a suit exactly similar in principle to the present case, Jenkins, C. J., also quotes the Judgment of Gaeth, C.J., in Sheikh Akbar's case and says (at page 363 of the report):--'It is apparent from this that the actual ratio decidendi was that there was no loan independently of the note, so that it does not govern this case, if, as I think, there was a loan independently of the note.'
13. The Chief Justice was clearly of opinion that where the loan could be proved without having recourse to the note the plaintiff was entitled to recover. In the same case Candy, J., took the same view, and refers at length to the authorities.]
14. In the case of Virbhadrapa bin Adrashapa Javli v. Bhimaji Balaji Saraff (1904) I.L.R. 28 Bom. 432 the question arose whether or not the drawing of two parallel lines over a receipt stamp was, or was not, an effectual cancellation of it. It was held that it was not. The court then went on to 'consider whether the plaintiff could be allowed to sue for money lent independently of the promissory tote, and held that the plaintiff could sue.
15. The same view was taken by a Bench of this Court consisting of Stanley, C.J., and Knox, J., in the case of Banarsi Prasad v. Fazal Ahmad (1905) I.L.R. 28 All. 298. The learned Chief Justice and Mr. Justice Griffin adhered to the same view in Sri Nath Das v. Amjad Singh (1910) 7 A.L.J. 459.
16. The only case really in point, where a contrary view was taken, was the case of Parsotam Narain v. Taley Singh (1903) I.L.R. 26 All. 178. In that case, no doubt, Aikman, J., held that where the parties contemplated at the time of the loan that a note should be taken, he plaintiff must stand or fall by a suit based on the note itself. t is quite clear that the learned Judge relied upon what he supposed was the view of Sir Richard Garth in Sheikh Akbar's case. We are unable to follow this case, in view of our own pinion and the authorities we have quoted. We consider that, there the plaintiff, as in the present case, is able to prove the loan independently and without the assistance of the note, he ought to succeed.
17. We accordingly allow the appeal, and vary the decree of the lower appellate court by restoring the decree of the court of first instance with costs in all courts.