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(Firm) Tarachand-protapmal Vs. TamijuddIn Sheikh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1935Cal658
Appellant(Firm) Tarachand-protapmal
RespondentTamijuddIn Sheikh
Cases ReferredNazir Khan v. Ram Mohan
Excerpt:
- .....was that the sum of rs. 200 was advanced to the defendant in the morning of 7th falgoon 1332, the transaction was complete then and gave him a distinct cause of action, but later in the evening, a promissory note was taken as money was not returned to him during the interval between the morning and evening of the said date. this story however of the money being advanced in the morning and the promissory note being taken in the evening by reason of the non-return of the money by the defendant has been disbelieved by the subordinate judge.2. in my judgment, there are two difficulties in the way of the plaintiff. his suit is based on the promissory note only. he did not claim to get any money on the basis of the original consideration. the plaintiff in such circumstances was no doubt.....
Judgment:

R.C. Mitter, J.

1. The plaintiff whose suit for recovery of Rs. 657 odd has been dismissed by both the Courts below has preferred this appeal to this Court. In the plaint, the plaintiff laid his claim on a promissory note said to have been executed by the defendant on 7th Falgoon 1332 for the sum of Rs. 326. The promissory note is insufficiently stamped. In the plaint however the plaintiff did not base his case on a cause of action independently of the promissory note. At the time of the trial however he wanted to shift the case and without making any attempt to amend his plaint wanted to get a decree on the basis that the defendant having taken Rs. 200 in cash from him on 7th Falgoon 1332 was bound to repay the same. His case as developed in the evidence was that the sum of Rs. 200 was advanced to the defendant in the morning of 7th Falgoon 1332, the transaction was complete then and gave him a distinct cause of action, but later in the evening, a promissory note was taken as money was not returned to him during the interval between the morning and evening of the said date. This story however of the money being advanced in the morning and the promissory note being taken in the evening by reason of the non-return of the money by the defendant has been disbelieved by the Subordinate Judge.

2. In my judgment, there are two difficulties in the way of the plaintiff. His suit is based on the promissory note only. He did not claim to get any money on the basis of the original consideration. The plaintiff in such circumstances was no doubt entitled to put his case in an alternative form as was pointed out by the Judicial Committee in Sadusuk Janki Das v. Kishan Pershad, 1918 PC 146 and if he does not base his case in the plaint on the original consideration he is out of Court because the promissory note is inadmissible in evidence being insufficiently stamped. This is the first difficulty in the plaintiff's way.

3. There is another and an additional difficulty in his way. Assuming that it is open to him now to sue on the basis of the advance made by him to the defendant and independently of the promissory note, the findings of fact arrived at by the learned Subordinate Judge concludes the matter. It has been laid down by Sir Richard Garth in Sheikh Akbar v. Sheikh Khan (1881) 7 Cal 256 that where a promissory note is given which is insufficiently stamped, the plaintiff is entitled to succeed only when his right to obtain relief is independent of the promissory note, that is to say, if the plaintiff's cause of action to recover the money had become complete before the execution of the promissory note he would be entitled to sue and succeed on the original consideration if the promissory note is rejected by the Court. The same view is expressed by Mookerjee, J., in Ram Bahadur v. Dusuri Ram (1913) 19 IC 840 where it is pointed out that where a promissory note is invalid for want of proper stamp, the plaintiff is not debarred from claiming upon any ground of action which he can prove without the aid of the promissory note. Later on, in the same judgment Mukherjee, J., expressed himself by saying that the plaintiff cannot enforce his claim on the original consideration where the original consideration had been merged in the promissory note which is insufficiently stamped. The same view has been expressed by Mukherjee, J., in Abdul Rabbani v. Shyam Lal Thapa (1929) 128 IC 194 and the matter has been considered by a Full Bench of the Allahabad High Court in Nazir Khan v. Ram Mohan, 1931 All 188, where nearly all the earlier cases of this Court and of other Courts have been discussed. The Full Bench of the Allahabad High Court has laid down the law clearly and with its judgment I agree as being in consonance with the decisions of this Court. Their Lordships of the Allahabad High Court pointed out that:

It is not open to a party who has lent money on terms recorded in a promissory note, which turns out to be inadmissible in evidence for want of proper stamp duty, to recover his money by proving orally the terms of the contract, in contravention of the provisions of Section 91, Evidence Act. In cases in which there is already a completed cause of action for recovery of money on foot of a distinct and separate transaction, and a promissory note is afterwards given as a collateral security, the creditor may, if the promissory note be inadmissible in evidence, recover on the original consideration and evidence aliunde can be given to prove the same. But where a promissory note and the lending of the money are part and parcel of the same transaction and the terms of the loan are the very terms of the promissory note, the contract of loan cannot be proved from the document itself and the plaintiff's suit must fail if the document itself be inadmissible in evidence.

4. As I have noticed above, the finding of fact arrived at by the lower appellate Court is that there was no completed and independent cause of action before the promissory note was executed. A part of the money was advanced contemporaneously with the execution of the promissory note and the advance by the plaintiff and the execution of the promissory note by the defendant was one transaction and gave rise to only one cause of action, namely, a cause of action the basis of which is the execution of the promissory note. In this view of the matter, I hold that the plaintiff's suit has been rightly dismissed by the Courts below. The result is that this appeal is dismissed with costs.


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