W. Combe Petheram, C.J.
1. This was a rule granted by this Court, under Section 25 of the Small Cause Courts Act, to revise an order of the Judge of the Small Cause Court at Krishnaghur by which he dismissed the petitioner's suit with-costs.
2. The cause of action and the defence were stated to be money due on a hatchitta, dated 3rd Aghran 1299, for Rs. 200, and interest thereon at the rate of Rs. 3 per mensem. Amount Rs. 416.
3. Defence.-Defendant admits that he borrowed Rs. 200 from Modhusudan Sanyal, and executed the hatchitta sued upon, but pleads payment of the loan with interest in Magh 1299.
4. The questions fixed for trial were-
(1) Is the hatchitia sued upon admissible in evidence?
(2) Is the suit maintainable in case the first issue is decided against the plaintiff?
(3) Is the defendant's plea of payment true?
5. When the document was produced, it appeared that it bore an anna receipt stamp only, and as the Judge came to the conclusion that it was a promissory note and should have been stamped with a two-anna stamp, he decided the first issue in favour of the defendant and refused to admit the document in evidence.
6. He then proceeded to try the second issue; came to the conclusion that the plaintiff had no cause of action independently of the document; and, as that had been excluded, dismissed the suit without trying the third issue.
7. I think that the Judge was wrong in thinking that the plaintiff had no cause of action independently of the document; and, as that is the case, it will not be necessary for me to express any opinion on the question whether the stamp was sufficient.
8. The defendant by his written statement admitted that he borrowed Rs. 200 from the plaintiff, and there can be no doubt that an implied contract to repay money lent always arises from the fact that the money is lent, even though no express promise, either written or verbal, is made to repay it. As this is the undoubted law, it must follow that, when the defendant admits that he borrowed the Rs. 200, he also admits that he promised to repay it; and if he has not done so, the plaintiff may maintain an action against him for breach of his implied promise or contract, entirely independently of any security which may have been given 'for the advance. The case which has been relied upon by the defendant is that of Sheikh Akhar v. Sheikh Khan I.L.R. 7 Cal. 256, in which Sir Richard Garth said: 'When the original cause of action is the bill or note itself and does not exist independently of it, as, for instance, when in consideration of A depositing money with B, B contracts by a promissory note to repay it with interest at six months' date, here there is no cause of action for money lent or otherwise than upon the note itself, because the deposit is made on the terms contained in the note and no other.' These words, taken alone, may seem to indicate that when a bill or note is taken for a debt the action must be brought upon the bill or note; and that if for any reason the document is excluded, the action must fail; but a reference to the earlier portion of the judgment shows that such was not the meaning of the Chief Justice, and that when he spoke of a deposit he did not mean a loan, as he then says where money is lent and a bill or note given for the loan which is not paid at maturity, the creditor may disregard the note and sue on the original consideration. This is in accordance with the case of Golap Chand Mawaree v. Thakurani Mohohoom Kooaree I.L.R. 3 Cal. 314, and with many unreported decisions of this Court, and is, in my opinion, the law in this country as well as in England.
9. For these reasons I think that the Small Cause Court Judge was wrong in deciding the second issue in favour of the defendant, and the rule must be made absolute to reverse his decision on that issue.
10. The result will be that the judgment dismissing the action will be set aside and the case sent back to the Small Cause Court to try the third issue and to dispose of the case in accordance with his finding on it.
11. The costs of the rule will abide the event of the trial.
12. I agree.