1. The question raised in this case is whether the suit is barred by limitation.
2. The suit was based upon two hundis payable in 30 days from the date of execution, and was brought more than three years from the data of the hundis but within three years from the expiry of the one month within which the hundis were payable. The hundis were not properly stamped and were, therefore, inadmissible in evidence.
3. The Court below held that although the hundis were inadmissible in evidence, the plaintiff was entitled to sue on the original consideration and further that the plaintiff was entitled to prove by oral evidence the conditions under which the money was repayable by the debtor.
4. As regards the first point, the Court below relied upon the case of Pramatha Nath Sandal v. Dwarka Nath Dey 23 C. 851 ; 12 Ind. Dec. (N.S.) 565.
5. The law to be applied in such cases is clearly laid down in the case of Sheikh Akbar v. Sheikh Khan 7 C. 256 ; 8 C.L.R. 528 ; 3 Ind. Dec. (N.S.) 713 where Sir Richard Garth, C.J., said: 'When a cause of action for money is once complete in itself, whether for goods sold, or for money lent, or for any other claim, and the debtor then gives a bill or note to the creditor for payment of the money at a future time, the creditor, if the bill or note is not paid at maturity, may always, as a rule, sue for the original consideration, provided that he has not endorsed or lost or parted with the bill or note, under such circumstances as to make the debtor liable upon it to some third person, In such cases the bill or note is said to be taken by the creditor on account of the debt, and if it is not paid at maturity, the creditor may disregard the bill or note and sue for the original consideration.'
'But 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 upon the terms contained in the note, and no other. In such a case the note is the only contract between the parties, and if for want of a proper stamp, or some other reason the note is not admissible in evidence, the creditor must lose his money.
6. The principle laid down by Garth, C.J. has been followed in the case of Ram Bahadur v. Dasuri Ram 19 Ind. Cas. 840 ; 17 C.L.J. 399.
7. The case of Pramatha Nath Sandal v, Dwarka Nath Dey 23 C. 851 ; 12 Ind. Dec. (N.S.) 565 relied upon by the Court below was considered by the Allahabad High Court in the case of Parsotam Narain v. Taley Singh 26 A. 178 ; A.W.N. (1903) 217 where Mr. Justice Aikman pointed out that the decision of Sir Richard Garth was misunderstood in the case of Pramatha Nath Sandal v. Dwarka Nath Dey 23 C. 851 ; 12 Ind. Dec. (N.S.) 565.
8. It is unnecessary, however, to discuss this question further; because, assuming that the plaintiff could maintain the suit for the original consideration, the suit, not having been brought within three years from the date of payment of the original consideration, must be held to have been barred by limitation.
9. The Court below has held that 'the plaintiff is entitled to prove by oral evidence the conditions under which the money was lent to, and repayable by the debtor. I would, therefore, hold that the plaintiff's cause of action has arisen after 30 days from the dates, of the bills and that the suit having been brought within three years of such dates, the claim is not barred.'
10. This question was also considered by Sir Richard Garth in Sheikh Akbar v. Sheikh Khan 7 C. 256 ; 8 C.L.R. 528 ; 3 Ind. Dec. (N.S.) 713 cited above. The learned Chief Justice observed as follows:
It is further contended on behalf of the plaintiff that, as by the promissory note the plaintiff gave the defendants two months' time to pay the Rs. 225, limitation ought not to run till the expiration of that time. But the obvious answer to this is, that the promissory note is not proved, and that it cannot be used for extending the time for payment of the Rs. 225 any more than for any other purpose.
11. A similar view was taken by Mr. Justice Mookerjee in the case of Ram Bahadur v. Dasuri Ram 19 Ind. Cas. 840 ; 17 C.L.J. 399 cited above. There the question to be considered was whether the terms of the contract for payment of interest could be proved by oral evidence in a case where the contract upon which the suit was based was inadmissible in evidence. The learned Judge said: 'The terms of the contract for payment of interest were reduced to writing. The written instrument was excluded from evidence by reason of the provisions of Section 10B of the Court of Wards Act, 1879. It is dear, therefore, that under Section 91 of the Indian Evidence Act, oral evidence was not admissible to prove the terms of the contract for the payment of interest. The learned Vakil for the respondent has ingeniously suggested that as the instrument itself must be held inadmissible, there is no proof that the terms of the contract for payment of interest were reduced to writing. This argument is obviously fallacious. The written instrument may be looked at for the purpose of showing that the terms of the contract for payment of interest had been reduced to writing within the meaning of Section 91 of the Indian Evidence Act, or oral evidence may be given to show that the contract as a matter of fact was reduced to writing.'
12. It is contended before us by the learned Pleader for the opposite party that under Section 35 of the Stamp Act, a document which is inadmissible cannot be used for any purpose whatsoever and that in that view no evidence can be adduced to show that the terms of the contract were reduced to writing so as to attract the provisions of Section 91 of the Evidence Act.
13. But, in the present case, it was unnecessary to adduce any evidence on the point; because the plaintiff himself in the plaint admitted that the terms of the contract, namely, that the defendant was to pay the money under the hundi within a month of the date of execution, had been reduced to writing; and a fact admitted in the pleadings need not be proved. It was, therefore, unnecessary to adduce any evidence to show that the terms of the contract had been reduced to writing.
14. It being admitted that the terms of the contract were reduced to writing and as no oral evidence was admissible to prove the said terms, the suit ought to have been brought within three years of the date of the transaction, if it could be maintained on the original consideration: and not having been so brought, the suit is barred by limitation.
15. The decision of the lower Court must, therefore, be set aside and the suit dismissed with costs.
16. We assess the hearing fee in this Court at one gold mohur.
17. The Rule is made absolute.