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Vaidanatha Chettiar Vs. Thirumalai Reddyar - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in148Ind.Cas.759
AppellantVaidanatha Chettiar
RespondentThirumalai Reddyar
Cases Referred and Ujagar Mai v. Ramditta Mal
Excerpt:
stamp act. (ii of 1899), sections 2(22), 35 - instrument purporting to be promissory note--no express undertaking to pay--mere statement that executant is liable to pay--whether promissory note or agreement--insufficient stamp--admissibility on payment of penalty--practice--amendment of plaint--order compelling plaintiff to amend plaint--acquiescence by plaintiff--defendant's right to object. - - the words are like those is tirupathi goundanv rama reddi 24 m. the party to complain is the person who is being compelled to amend the plaint and not the opponent. so far as the person alleged to be compelled (the respondent) is concerned, he does not complain; therefore, it does not lie in the mouth of the appellants to complain......for collection for the payee lakshmi ammal. the case had a curious history. as a promissory note, the instrument was insufficiently stamped. thereupon the plaintiff first pleaded that it was lost. on the defendants raising the objection that it was not lost by that the truth was that it is inadmissible being in sufficiently stamped, the plaintiff produced the paper but succeeded m obtaining from the court leave to amend the plaint by pleading as his cause of action the promissory note ex. 0 dated june 25, 1921, of which it was said ex. a was a renewal. but this mr.de the suit prima facie out of time and so the plaintiff pleaded that the invalid promissory note furnished an acknowledgment to save limitation. the district munsif held that ex. a is inadmissible as a promissory note.....
Judgment:

Krishnan Pandalai, J.

1. The appeal is by the three defendants, brothers, against a decree made by the learned Subordinate Judge of Trichinopoly awarding the respondent (plaintiff) a decree on the instrument Ex. A described as a promissory note and dated June 20, 1924, for Rs. 884. The respondent was an endorsee for collection for the payee Lakshmi Ammal. The case had a curious history. As a promissory note, the instrument was insufficiently stamped. Thereupon the plaintiff first pleaded that it was lost. On the defendants raising the objection that it was not lost by that the truth was that it is inadmissible being in sufficiently stamped, the plaintiff produced the paper but succeeded m obtaining from the Court leave to amend the plaint by pleading as his cause of action the promissory note Ex. 0 dated June 25, 1921, of which it was said Ex. A was a renewal. But this mr.de the suit prima facie out of time and so the plaintiff pleaded that the invalid promissory note furnished an acknowledgment to save limitation. The District Munsif held that Ex. A is inadmissible as a promissory note and that it did not contain any sufficient acknowledgment of the previous debt under Ex. G and so he dismissed the suit. On appeal, the learned Subordinate Judge of Trichinopoly upheld the Munsif's view as to Ex. A not containing any acknowledgment of the old debt under Ex. 0, but he yielded to the argument of the appellant-plaintiff) that Ex, A is not a promissory note at all but an instrument capable of being made admissible though insufficiently stamped as a promissory note by duty being paid upon it as an agreement along with the necessary penalty. He gave a decree on this footing on terms that the plaintiff was to pay the whole of the costs theretofore incurred within a time mentioned. It is now staled by the respondent that he has fulfilled the terms, that is, deposited the costs in the lower Court. The appellants' argument is two-fold: (1) that Ex. A is a promissory note and not an agreement which can be made admissible by payment of stamp duty and penalty and (2) that the lower Appellate Court had no authority to order or to allow a re-amendment of the suit which had been once amended so as to reconvert it into one based on Ex. A. On the first point as to what Ex. A really amounts to the learned Judge has referred to a decision in Tirupathi Goundan v. Rama Reddi 24 M. 49 where, as in this case, instead of the usual undertaking which should be contained in a promissory note 'I shall pay or I undertake to pay etc.,' the words of liability were 'I am liable to pay,' a Bench of this Court held that such an instrument doasnot contain any undertaking to pay and so held it was not a promissory note. No doubt, another Bench in Muthu Sastrlgal v. Visvanatha Pandara Sannadhi 21 Ind. Cas. 864 : 38 M. 660 : 14 M.L.T. 520 : (1914) M.W.M. 58 : 26 M.L.J. 19 reserved their opinion about this case but neither they nor any other Bench has overruled it or dissented from it. Although, if I were competent, I would have my own views on the subject, I am bound by this decision. In t his case in Ex. A the words of liability arc 'kodukka ullavar' (person liable to pay) and then follows the signature. The words are like those is Tirupathi Goundanv Rama Reddi 24 M. 49 is the respect that there is no undertaking to pay except the one which is to be implied from all acknowledgments which, according to the view of the English Law, for certain purposes imply a promise to pay. I will accept the decision as binding on me for this case.

2. On the second point, the objection is misconceived because the appellants who now object to the amendment, object that the lower Court had no jurisdiction to compel the respondent to amend his plaint which should have been done, if at all, only on his application. The party to complain is the person who is being compelled to amend the plaint and not the opponent. So far as the person alleged to be compelled (the respondent) is concerned, he does not complain; on the contrary, he has acquiesced in it and taken advantage of it by paying costs on condition of having his decree. Therefore, it does not lie in the mouth of the appellants to complain. The cases cited before me on the point that the Court has no jurisdiction to compel amendment except on the application of the party who wants it, namely Venkatachella Chetty v. Narayana Aiyar 19 Ind. Cas. 672 : 24 M.L.J. 455 : (1913) M.W.N. 399 and Ujagar Mai v. Ramditta Mal, 111 Ind. Cas. 787 were both cases in which the party complaining was the party compelled.

3. Lastly, the contention that the Court would not have allowed the re-conversion of the suit by amendment into one based on Ex. A because it deprived the appellants of a plea of limitation is equally unfounded, because the suit was originally brought on Ex. A and, if there was no plea of limitation on that day, the re-conversion of the suit by amendment did not deprive the appellants of any plea of limitation which did not possess. The appeal, therefore, fails and is dismissed with costs. The memorandum of objection is also dismissed with costs.


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