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Chellam Sakka Raja Vs. Muthusami Moopar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1936Mad632; 165Ind.Cas.503; (1936)71MLJ166
AppellantChellam Sakka Raja
RespondentMuthusami Moopar
Cases ReferredRamsaran Mandar v. Mahabir Sahu
Excerpt:
.....in the list of documents already referred to) and by treating the subsequent notes including the suit note, as acknowledgments of the original debt. but if the debt had become barred and in 1928 a fresh promise was made to pay the barred debt, i fail to see why it should not be likewise held that the suit debt had its origin in the fresh promise. if it is genuine, the plaintiff's claim is a just one and the allowing of the technical plea of the defendant, however valid in law, will result in that claim being defeated. rajah iyer's contention that on the date of the application the claim would be barred by limitation, i cannot do better than quote the following passage from the judgment of their lordships of the privy council in char an das v. 9. in the present case i am satisfied that..........statement, while admitting the genuineness of the previous notes, denied that he executed the suit promissory note. he further pleaded that the note on which the suit was based, being one payable to the plaintiff or bearer on demand, contravened the provisions of the indian paper currency act, 1923 and was therefore unenforceable. there was a further defence raised which related to*the plaintiff's right to sue, but for the purpose of my judgment that plea is not relevant.4. the plaintiff, with a view to overcome the difficulty raised, namely, that the suit note was unenforceable, applied for leave to amend his plaint by alleging that he based his claim on the original promissory note dated 31st july, 1913 (mentioned in the list of documents already referred to) and by treating the.....
Judgment:

Venkataramana Rao, J.

1. The question to be decided is, whether the learned Judge in permitting the amendment has infringed any principle of law or of procedure governing the point.

2. The facts may be briefly stated. The suit was filed on a promissory note dated 29th June, 1931. In the list of documents filed with the plaint seven previous promissory notes were mentioned. The dates and the amounts for which the notes were executed were set forth and the documents themselves were filed with the plaint.

3. The defendant in his written statement, while admitting the genuineness of the previous notes, denied that he executed the suit promissory note. He further pleaded that the note on which the suit was based, being one payable to the plaintiff or bearer on demand, contravened the provisions of the Indian Paper Currency Act, 1923 and was therefore unenforceable. There was a further defence raised which related to*the plaintiff's right to sue, but for the purpose of my judgment that plea is not relevant.

4. The plaintiff, with a view to overcome the difficulty raised, namely, that the suit note was unenforceable, applied for leave to amend his plaint by alleging that he based his claim on the original promissory note dated 31st July, 1913 (mentioned in the list of documents already referred to) and by treating the subsequent notes including the suit note, as acknowledgments of the original debt. But unfortunately, among the notes there was one which was executed after the expiry of three years from the date of the note, which immediately preceded it. The dates of those two'notes were respectively 17th July, 1928, and 14th June, 1925. The plaintiff was therefore driven to allege that the former note contains a promise to pay a timebarred debt and applied for further leave, to base in the alteranative a substantive cause of action on the note of 17th July, 1928. The lower Court allowed both the amendments, that is to say, it allowed the plaintiff first, to fall back on the original cause of action of 1913 and secondly, in the alternative, to claim relief on the basis of the promissory note of 1928. The question is, as I have said, whether the learned judge in making that order has contravened any settled principles bearing on the subject.

5. Mr. Rajah Iyer for the petitioner does not seriously contest the proposition, that in a suit on an invalid promissory note, the plaintiff can be allowed to fall back upon his original cause of action. In this case the question is, which is the original cause of action? That the transaction of 1913 be it the first promissory note or the debt evidenced by it, answers that description, there can be no doubt. But if the debt had become barred and in 1928 a fresh promise was made to pay the barred debt, I fail to see why it should not be likewise held that the suit debt had its origin in the fresh promise. In fact had there been no intervening gap, the original cause of action would certainly have been the transaction of 1913; but if by reason of the gap that intervened, the plaintiff could substantiate his assertion that there was a fresh promise to pay the barred debt, that promise would undoubtedly be the original cause of action in respect of the suit promissory note. I am therefore disposed to think that the lower Court did no more than allow the plaintiff to fall back upon the original cause of action. If the question is looked at in one way, the transaction of 1913 becomes the original cause of action; if in another, the transaction of 1928.

6. The question of fact which is of fundamental importance is, whether the promissory note of 1931 sued upon is or is not genuine. If it is genuine, the plaintiff's claim is a just one and the allowing of the technical plea of the defendant, however valid in law, will result in that claim being defeated. Whether the plaintiff seeks to have his original claim tried or any of the alternative claims introduced by way of amendment, he is bound to face the issue, whether the note sued on is genuine or not. That being so, it is impossible to hold that he applied for leave to amend his plaint with a view to shirk that vital question.

7. Hard pressed as the plaintiff is, he is driven to rely upon various alternative causes of action, in order to get rid of a technical plea calculated to defeat his claim which, as I have said, is a just one. In such a case I think it is the duty of a Court not to place any kind of obstacle in the way of the plaintiff.

8. As regards Mr. Rajah Iyer's contention that on the date of the application the claim would be barred by limitation, I cannot do better than quote the following passage from the judgment of their Lordships of the Privy Council in Char an Das v. Amir Khani (1920) 39 M.L.J. 195 : L.R. 47 IndAp 255 : I.L.R. 48 Cal. 110 :

That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse fof time, yet there are cases see for example Mohummud v. Rutta Koer (1867) 11 Moo. I.A. 214 : I.L.R. 48 Cal. 832 where such considerations are outweighed by the special circumstances of the case.

9. In the present case I am satisfied that such special circumstances exist. I may in this connection refer to my judgment in Muthammal v. Gurusami Nayakkan (1934) 67 M.L.J. 921.

10. Nor am I prepared to accede to the argument, that the amendment that has been allowed, has the effect of converting the suit into another of a different and inconsistent character. The facts of Ma Shwe Mya v. Maung Mo Hnaung (1921) L.R. 48 IndAp 214 : I.L.R. 48 Cal. 832 on which Mr. Rajah Iyer relies, if carefully examined, show that the three sites to which the amended plamt related, were different from the sites in respect of which the original relief was claimed. That this was a factor to which their Lordships were prepared to attach great importance, appears from the following passage:

It is important to observe that no one of those numbers relates to any of the sites that were originally allotted'in respect of 1903, and that the whole action is deliberately founded on the alleged agreement of 1912.

11. Then again their Lordships observe:

The real question in controversy between the parties in these proceedings was the existence and the character of an agreement alleged to have been made in 1912 for the delivery of certain sites of oil wells specified and identified by the numbers stated in the plaint, which could only have been delivered in respect of that subsequent bargain.

12. The facts of the present case are entirely different. The subject matter of the claim has not been changed; the money claim in the original plaint, as also in each of the subsequent amendments, remains identical. I find nothing in Ma Shwe Mya v. Maung Mo Hnaung (1921) L.R. 48 IndAp 214 : I.L.R. 48 Cal. 832 to compel me to give effect to Mr. Rajah Iyer's contention.

13. Nor am I prepared to regard Ramsaran Mandar v. Mahabir Sahu (1926) 52 M.L.J. 402 : L.R. 54 IndAp 55 : I.L.R. 6 Pat. 323 as laying down any principle which conflicts with the view I am disposed to take.

14. Mr. Rajah Iyer, however, says that the legal plea based upon the Paper Currency Act would be available to the defendant, also in regard to the amended claim, it being alleged that even the promissory note dated 17th July, 1928, contravenes the provisions of that Act. But that is a matter into which I do not at present propose to enter. I am satisfied that the amendments have been properly allowed. If the defendant by relying upon a point of law can still defeat the plaintiff's claim, that is a matter which has to be gone into in the case. I think that is the lower Court's view and I am not prepared to differ from it.

15. The Civil Revision Petition fails and is dismissed with costs.


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