1. This appeal arises out of a suit for recovery of money due on a promissory note for Rs 1,000. The plaintiff's case is that he lent Rs 1,000 to the defendant in cash on the basis of this handnote. The defendant denied this. The Courts have come to the conclusion that the defendant did not receive Rs. 1,000 as consideration for the handnote in question. The suit has been dismissed by the Courts below. Hence this second appeal by the plaintiff.
2. In view of the concurrent findings of the Courts below that the defendant did not receive any consideration for this promissory note, the negotiable instrument did not create any obligation between the plaintiff and the defendant. It is however contended on behalf of the plaintiff that as the defendant's case is that he executed the promissory note in consideration of the advances made by the firm of which the plaintiff is the managing partner, and as no payment was made to the plaintiff who is the holder of the negotiable instrument, the defendant is liable to pay the amount mentioned in the handnote to the plaintiff. I am unable to accept this contention. From the evidence of Abhoy Saha, whom the learned Judge has believed, it appears that at the time of settlement of accounts between the Firm of which the plaintiff is the managing partner and the Firm of which the defendant is the managing partner, a certain quantity of jute worth Rs. 1,000 delivered by the defendant Firm to the plaintiff Firm was accepted by the plaintiff in full discharge of the obligation under the handnote in question, and the plaintiff agreed to return the promissory note in suit to the defendant. It is true that under Section 78, Negotiable Instruments Act, payments must be made to the holder, but if the plaintiff, that is the holder of the promissory note, elected to treat the payment to his Firm as the payment to himself, the payment was a payment to the holder within the meaning of Section 78, Negotiable Instruments, Act and the debtor was discharged from the liability under the promissory note. See Feld v. Carr (1828) 5 Bing 13. The Courts below were therefore right in dismissing the plaintiff's suit. The appeal is accordingly dismissed with costs.