1. This is an application in revision against a decree of the Small Cause-Court Judge. The first ground sets forth that
the suit is based on an alleged promissory note which contains no promise to pay or anything else which would constitute it a pro-note.
2. There is nothing whatever in the reoord to support the allegations in this ground. The suit was not based on an alleged promissory note. Learned Counsel examined the plaint with the desire to prove his allegation, but the plaint does not support the allegation; on the contrary the plaint sets forth in para. 2 that according to the desire of the defendant the plaintiff paid the defendant, Rs. 500, and the defendant signed a stamped paper, and the plaint as amended states that this paper was to be used as a memorandum of the transaction, and further the plaint sets forth that the defendant orally said that he would get the money from his house and pay it back to the plaintiff.
3. The plaint therefore was based not on any promissory note or any suggestion of a promissory note, but on an oral promise to pay, and on a document which was a memorandum or stamped receipt for the payment of Rs. 500, by the plaintiff to the defendant. The plaintiff is a moneylender and on proof that the plaintiff lent Rs. 500 to the defendant it would be open to the Court below to come to the conclusion that the circumstances gave rise to an implied promise by the defendant to repay the money which was lent. That apparently is what the lower Court has done.
4. The second ground is that there was no evidence that the defendant promised to pay back the money even if the plaintiff's statement be believed in full. The written statement of the defendant adopted the line of defenoe that the defendant signed the papers in question, but that the defendant himself did not receive any consideration. The case put forward in defence is that another person Guru Bainpuri desired to borrow money and that as defendant had good credit this person, got the defendant to sign the papers in question. It is obvious from the definition of 'consideration' in the Contract Act. 8. 2, that in the case pleaded in the written statement there would be consideration. The fallacy in the written statement of defendant is that 'consideration' according to defence, must be some benefit received by the defendant. But that is not the definition in the Contract Act, Section 2. The third ground was that the learned Judge acted against law in relying upon documentary evidence which is inadmissible. It is not shown that there was any inadmissible documentary evidence relied on by the Judge.
5. The fourth ground again repeats some reference to the alleged promissory note. No one except learned Counsel in revision has ever alleged that there was a promissory note. Learned Counsel also referred to a ruling reported in : AIR1933All109 , Karan Singh v. Lal Singh, apparently relying on certain language in the headnote. That ruling referred to a case in which there was a promissory note was understamped and not admissible. The plaint therefore based a case on the receipt alone. Now Section 35, Stamp Act, states that instruments not duly stamped are inadmissible in evidence. Section 91, Evidence Act, states that where the terms of a contract, grant or other disposition of property have been reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, except the document itself. Although every ruling in regard to promissory notes does not set forth these two elementary points of law, as the points of law are very well known, still in general these rulings on promissory notes which are insufficiently stamped proceed on the basis of these two sections. Where however as in the present case, there was no written promise to pay, Section 91, Evidence Act, does not apply, because the parties have not reduced the terms of their contract to writing.
6. It is for this reason that the present case differs from the case reported in : AIR1933All109 . In the reported case and other similar cases these two sections prevent evidence being given of any oral agreement because the promissory note is inadmissible, and Section 91, Evidence Act, prevents oral evidence being given of any oral agreement. Where! however there is no bar from the existence of a promissory note which is not sufficiently stamped, then there is no reason why the terms of the promise to pay should not be heldto be proved by evidence. Those terms may either be proved in such a case by oral evidence or, as in the present case, by circumstantial evidence. In the present case there is the circumstance that the defendant desired that money should be lent to his friend, and the defendant approached the plaintiff who was a moneylender, and the plaintiff lent the money to the defendant on his acknowledging that he received it. Such circumstances give rise to an implied promise to repay the loan. The plaintiff would not have lent the money if he had not understood at the time that the defendant intended to repay the loan. Under these circumstances I see no reason to interfere in revision with the judgment of the lower Court. Accordingly I dismiss this revision.