1. The plaintiff applicant sued for recovery of a certain sum of money advanced to the defendants by way of loan. It was stated in the plaint that the defendants executed a promissory note for the sum borrowed by them but that the promissory note being under-stamped was not admissible. Accordingly, the plaint proceeded to state, the plaintiff brought his suit on the basis of the receipt, simultaneously executed by the defendants and of other evidence.
2. The lower Court held, on the authority of the Full Bench case of Nazir Khan v. Ram Mohan : AIR1931All183 that no evidence other than the promissory note could be admissible in support of the plaintiff's claim and dismissed the suit.
3. It is contended by the learned advocate for the applicant in revision that the Full Bench case, referred to by the lower Court, is distinguishable on the ground that the receipt executed by the defendants and not the promissory note, is the foundation of the plaintiff's suit. The argument, as I understand it, is that the promissory note may be ignored by the plaintiff, who can find his claim on a document which is admissible in evidence and establishes the transaction of loan to the same extent as the promissory note would have done, if produced and admitted. I am unable to accept this line of reasoning in view of the ratio decided laid down by the Full Bench case already referred to. The learned Judges draw a distinction between cases in which the transaction of loan is wholly independent of the promissory note, and those in which it is not. They, insist on the promissory note being taken as the sole evidence in proof of the transaction of loan, if the promissory note was intended by the parties to be part of the same transaction. In the case before me it is not suggested that the transaction of loan was independent of the promissory note. This being so, no evidence can be adduced in proof of the transaction of loan except the promissory note which is inadmissible in evidence. The receipt is merely an acknowledgment of a sum of money having been received by the defendants as consideration of the promissory note which is therein referred to. Receipt of money by one person from another does not by itself entitle the latter to recover it, unless it is established that the person receiving the money agreed expressly or impliedly to repay it to the person who paid it. In other words, in a suit of this kind the plaintiff has to establish an undertaking by the defendant to repay the sum of money received by him. Such undertaking is contained only in the promissory note which is inadmissible in evidence. The receipt does not contain any promise to pay otherwise it should be stamped as a bond and would itself be inadmissible for want of sufficient stamp duty.
4. I am satisfied that the Full Bench case, which has been followed by the lower Court, is applicable to the circumstances of this case. This revision is accordingly dismissed with, costs.