G.C. Das, J.
1. This is a plaintiff's application under Section 25 of the Provincial Small Cause Courts Act against the judnnent of the learned Small Cause Court Judge, Berampur, dismissing his suit. The plaintiff filed a suit against ihe defendant for realisation of Rs. 154-10-0, basing his claim on a promissory note dated 28-5-55. The defence inter alia was that the defendant gave his thumb impression on a blank piece of paper under threat & coercion for the execution of a Muchalika. The learned Small Cause Court Tudge dismissed the suit on two grounds: (i) The attestor and the scribe of the document are both interested in the plaintiff and hence they cannot be believed. (2) The name of the payee is not mentioned in the promissory note itself. Therefore in terms of Section 4 of the Negotiable Instruments Act, it cannot be held to be a promissory hole.
2. Mr. N.V. Ramdas, learned counsel appearing on behalf of the petitioner, submitted that the onus was wrongly put on the plaintiff when the defendant had admitted the execution on a blank sheet of paper. His next contention was that the defendant did not prove that there was coercion and threat, much less the stamp paper was for a Muchalika. I heard this case on 24-9-57 when I allowed Mr. Ramdas sometime to find out if there is any reported decision for the contention; even if the word 'you' is used in a document, it would all the same amount to a promissory note within the meaning of the Negotiable Instruments Act.
Mr. Ramdas today (1-11-57) tried to rely upon two decisions, one or the Bombay High Court reported in Bhagwandas v. Chhaganlal, AIR 1944 Bom 235(1) and the other of the Allahabad High Court reported in Sushil Chander v. Wali Ullah, AIR 1941 All 158. In the Bombay case, their Lordships were concerned with a document which was insufficiently stamped and it was admitted to be a pronote. The question therefore for consideration was whether at a later stage it can be rejected as a promissory note being insufficiently stamped at the inception. Their Lordships held that this cannot be done. Similarly in the Allahabad case it was a promissory note insufficiently stamped.
Mr. Justice Dar held that the main question in deciding whether a document is a promissory note is to consider not whether the instrument is negotiable or not, though ordinarily negotiability of an instrument is a good test to determine whether a document is a promissory note Or not; but to consider whether in substance and in primary intention of the parties the document was or was not a promissory note and whether it contained necessary recitals or whether it was intended to record a different kind of transaction altogether Section 2(22) of the Stamp Act and Section 4 of the Negotiable Instruments Act, make it obvious that a document which contains a promise to pay on a contingency will not be treated as a promissory note For the purposes of the Negotiable Instruments Act but may be regarded as such for the purposes of the Stamp Act.
3. The question of fact whether the altestor and the scribe, P. Ws. 2 and 3 respectively should or should not be believed is not necessary to be considered in this case. The whole question turns upon whether the suit-document is a promissory note within the meaning of Section 4 of the Negotiable Instruments Act (Act XXVI of 1881) which is as under:
'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.'
In the instant case, the name of the payee is not given in the body of the document. He has been described as 'you.' What the Legislature intends in unmistakable terms is that not only that the money advanced is a certain sum of money, but it is advanced by a person who is certain. In the present rase it cannot be held that the person who advanced the money is a person certain. Therefore, it cannot be held that the suit-document is a promissory note within the meaning of Section 4 of the Negotiable Instruments Act. Failing this contention. Mr. Ramdas ultimately urged that if the plaintiff cannot base his claim upon the promissory note, he ran very well fall back on the original loan that he advanced to the defendant. To this proposition of law. Mr. H.G. Panda, learned counsel appearing on behalf of the opposite partycan have no objection. In a case reported in Brijbhusan Pande v. Ramjanam Kuer, AIR 1932 Pat324, Dhavle J. held that where a handnote doesnot mention the name of the payee at all, nodecree can be passed on such instrument. Thepayee can fill in the blank instrument and unlesshe does so, he is not entitled to bring a suit andobtain a decree. His Lordship, however, takinginto consideration Section 62 of the Contract Act heldthat where the plaintiff sues on a defective hand-note, the handnote failing, he is entitled to sue onthe loan itself, but be cannot do so withoutamending the plaint. With great respect, I agreewith the Pattia view and accordingly, while holding that the suit-document is not a promissory note,,I would send this case back to be reconsideredonce again giving an opportunity to the plaintiffto amend his plaint basing his claim on the originalloan. The defendant, however, will have an opportunity of filing his written statement when theplaint is amended, and the learned Small CauseCourt Judge will then proceed to dispose of the suit in accordance with law. Accordingly, I wouldset aside the judgment of the learned Small CauseCourt Judge dated 27-4-56 and send this case backfor retrial. The opposite party is entitled to hiscosts. I assess the hearing fee at Rs. 32/-.