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Bhusan Chandra Ghose Vs. Kanailal Sadhukhan - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata
Decided On
Reported inAIR1937Cal241
AppellantBhusan Chandra Ghose
RespondentKanailal Sadhukhan
Cases ReferredMahatab Uddin v. Mahomed Najir Joddar
Excerpt:
- .....the courts and that is this: as to whether a suit can lie on the original consideration when the hand-note which evidences the loan is found to be inadmissible by reason of certain provisions of the statute. it appears that after taking the loan the defendant executed a hand-note which has been marked ex. 1 to the following effect:on demand i promise to pay both principal and interest either to you (the tender) or to your order or bearer the sum of rs. 175 with interest at 3 per cent. per rupee per month.2. this hand-note is not in accordance with law having regard to the provisions of section 25, paper currency act. the question is whether the hand-note being out of the way the suit would lie. the question came up for consideration before their lordships of the judicial committee in.....
Judgment:
ORDER

D.N. Mitter, J.

1. Two questions fall for determination in this Rule: (1) the question of limitation and (2) the question of the maintainability of the suit. The facts which are relevant for the purpose of determining the first question are as follows: It appears that on 23rd March 1936 the plaintiff who is now the opposite party, applied for permission to sue in forma pauperis for recovery of a certain sum of money. He was examined on 24th. His petition was immediately rejected and thereupon he asked for permission to put in the full court-fees on the plaint and he was given a month's time from that date to put in the court-fees. He did actually put in the whole court-fees on 15th April 1936. It is contended that money having been borrowed according to the allegation in the plaint on 24th March 1933 the suit was barred by limitation as the full court-fees were paid on 15th April 1936, more than three years after the date of the bond. This contention was negatived by the Small Cause Court Judge and in my opinion rightly negatived. Section 3(by the explanation to that section) enacts:

A suit is instituted, in ordinary oases, when the plaint is presented to the proper officer; in the case of a pauper, when his application for leave to sue as a pauper is made....

and according to the explanation the suit is within time. It is argued by Mr. Chakravarty who obtained this rule that explanation might apply to the case of a person who has been found to be a pauper and not to the case of a person whose application to sue in forma pauperis has been rejected on the ground that he is not a pauper. This is a plausible argument; for it may be said that in that case, when he is not found to be a pauper, the application in forma pauperis is not by a pauper within the meaning of Section 3 and there are some authorities in support of this contention: see the cases in Keshav Ramchandra v. Krishnarao Venkatesh (1896) 20 Bom 508 and Naraini Kuar v. Makhan Lal (1895) 17 All 526. But it has been held in this Court and also in other Courts that if the application be not granted the applicant may pay the court-fees on the plaint already presented and that the date of the institution of the suit will be the original date when the plaint was actually presented with the application. There is a decision of this Court where Sir Francis Maclean, C.J. and Banerjee, J. came to this conclusion in a Letters Patent Appeal: see the case in Janakdhari Sukul v. Janki Koer (1901) 28 Cal 427. The same view has been taken in Madras: see the case in Nellavadivu Ammal v. Subramania Pillai AIR 1918 Mad 1039. I am not prepared to dissent from the view taken in Janakdhari Sukul v. Janki Koer (1901) 28 Cal 427 and I think the contention raised by the applicant before me must be overruled. The suit, in my opinion, was in time. The second question raises a point which frequently arises before the Courts and that is this: as to whether a suit can lie on the original consideration when the hand-note which evidences the loan is found to be inadmissible by reason of certain provisions of the statute. It appears that after taking the loan the defendant executed a hand-note which has been marked Ex. 1 to the following effect:

On demand I promise to pay both principal and interest either to you (the tender) or to your order or bearer the sum of Rs. 175 with interest at 3 per cent. per rupee per month.

2. This hand-note is not in accordance with law having regard to the provisions of Section 25, Paper Currency Act. The question is whether the hand-note being out of the way the suit would lie. The question came up for consideration before their Lordships of the Judicial Committee in somewhat similar circumstances in Sadasuk Janki Das v. Kishan Pershad AIR 1918 P C 146. In that case it appeared that on 14th April 1910 one Mohan Lal borrowed from the plaintiffs who were the appellants before the Privy Council a sum of Rs. 35,000 and to secure repayment drew and accepted in their favour on the same date several hundis. The hundis were dishonoured and the appellant before the Privy Council took proceedings against Mohan Lal and Maharaja Sir Krishna Prosad who were the respondents in the appeal before the Privy Council claiming the amounts due upon the hundis with interest. The suit was really based on the hundis and the suit was dismissed. Lord Buckmaster in delivering the judgment of the Privy Council made certain observations which are pertinent to the present controversy. He said:

It would, of course, have been open to the plaintiffs had they thought fit to have framed their case in an alternative form, and to have sued both the hundis and alternative upon the consideration.

3. It appears clear from these observations that the Judicial Committee was of opinion that the suit could be maintained at the instance of the plaintiffs if relief was alternatively asked for on the footing of the original consideration. In the present case it appears clear from the statement in the plaint that the plaintiff was suing on the original consideration. Para. 1 of the plaint which is in Bengali is as follows:

Bibadee chahiba matra mashik prati takaya ake payashar hishabey shudyee shamasta taka parishodher angikare Adalater elakadheen Khidirpur Shakime san 1339 shaler 10th Chaitra, (Engrajee 24-8-33) tarikhe Badeer nikat haite nagad 175 taka karjja grahan karen, ebang tat-poshaktaya Badeer nam barabar atrasaha dakhili hand-note sampadan kariya den.

4. This paragraph in the plaint makes it clear that the loan was independent of the hand-note and that, as a matter of fact, the taking of the loan was completed before the execution of the hand-note which was taken in support of the loan, the word 'support' being the literal translation of the Bengali word poshakataya. It is true that at the head of the plaint the suit as described as dabee hand-note babad, ashal maya, sud-saha. But we have to look to the real substance of the plaint, and Para. 1 which has been quoted in Bengali makes it clear that the allegation in the plaint was that the loan had been completed before the execution of the hand-note, although the hand-note might have been executed shortly after the taking of the loan. I should have thought that this was sufficient to entitle me to hold that the suit was founded on the original consideration. The matter also came up for consideration in three recent cases of this Court. The first decision is that of the learned Chief Justice and Mukerji, J. in East Bengal Commercial Bank, Ltd. v. Surendra Narayan Saha (1935) 89 OWN 1235. In that case the plaintiff was allowed to amend his plaint by striking out the heading which described the suit to be a suit on a band-note and he was granted a decree after such amendment had been made. It was pointed out after a consideration of the earlier cases on the question that:

The creditor had a cause of action upon the loan independently of the promissory note and might prove and succeed upon it, although the promissory note was under-stamped and so inadmissible in evidence.

5. In that case it appeared that at the time of the loan there was made out a promissory note as also a voucher containing all the terms of the loan and signed by the debtor and it appeared that the voucher was intended to be the record of the transaction and the note was given as a collateral security. I think the amendment was rightly allowed as it met the ends of justice. The next case is a decision of R.C. Mitter, J.: see the case in Tarachand Protapmal v. Tamijuddin Sheikh : AIR1935Cal658 . In that case also it was pointed out:

Where there was a completed transaction prior to and independently of the note the creditor is entitled to recover on the original consideration for which he may make an alternative case falling back thereupon and proving it by evidence aliunde if his promissory note proves inadmissible. Even in such a case, if the claim in the plaint be based on the promissory note alone, the plaintiff cannot succeed on the original consideration without amending his plaint.

6. There is another decision, a more recent one of the same learned Judge R.C. Mitter, reported in Mahatab Uddin v. Mahomed Najir Joddar : AIR1936Cal170 . The same view was also taken there. It is not necessary in this case to have the heading of the plaint amended, for in my opinion, Para. 1 in the plaint makes it clear that the assertion made by the plaintiff is that there was a loan independently of the hand-note and that the hand-note was execrated subsequently after the loan was given. In my opinion the Small Cause Court Judge has taken the right view of the matter and the contention of the petitioner must be overruled. The result is that this rule is discharged with costs. I assess the hearing fee at one gold mohur.


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