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Abinash Chandra Bose Vs. Nagendra Nath Dutt - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1931Cal480
AppellantAbinash Chandra Bose
RespondentNagendra Nath Dutt
Excerpt:
- .....showed that the sum of money referred to in para. 5 of the plaint was due to him. this promissory note was stamped with a one-anna stamp, but it should have bean stamped with a two-anna stamp. no objection was raised by the defendant to the reception in evidence of this promissory note. there was a decree. but it appears that the attention of his legal advisers was subsequently drawn to the insufficiency of the stamp of the promissory note. he thereupon proceeded to file a review, the munsif having previously held that the evidence on the record was such as would justify him in passing a decree against the defendant. the review application, at the instance of the defendant, was rejected. the matter was carried on appeal to the additional district judge, mr, lethbridge. he came to the.....
Judgment:

1. This appeal must be dismissed. It arises out of a suit for recovery of a certain sum of money. How the money became payable to the plaintiff is set out in great detail in the plaint itself and specially in para. 5 thereof. The defendant in his written statement admitted the transaction whereon the plaintiff became his creditor for the sum mentioned in the plaint. The defendant however said that there was nothing due and owing by him because there had been payment to the plaintiff; in other words, the defence amounted to a simple plea of payment. The matter went to trial. It appears that the plaintiff produced a promissory note which showed that the sum of money referred to in para. 5 of the plaint was due to him. This promissory note was stamped with a one-anna stamp, but it should have bean stamped with a two-anna stamp. No objection was raised by the defendant to the reception in evidence of this promissory note. There was a decree. But it appears that the attention of his legal advisers was subsequently drawn to the insufficiency of the stamp of the promissory note. He thereupon proceeded to file a review, the Munsif having previously held that the evidence on the record was such as would justify him in passing a decree against the defendant. The review application, at the instance of the defendant, was rejected. The matter was carried on appeal to the Additional District Judge, Mr, Lethbridge. He came to the conclusion that the defendant's witnesses made the defendant's case worse. He believed the plaintiff's evidence and gave him a decree.

2. On appeal before us Mr. Bose has contended that the foundation of the suit was the promissory note and as the promissory note could not be received in evidence and acted upon, the decrees of the two Courts below were entirely wrong. To this the simple answer is that there is no denial of the transaction whereon the plaintiff became the creditor of the defendant. If one examines this written statement the defendant's plea was one of payment. The promissory note was admitted in evidence, no objection having been taken thereto. Under these circumstances we have got to look to the provisions of Sections 35 and 36, Stamp Act. There may be some difficulty in holding that the promissory note can be acted upon. But no difficulty can possibly arise at the appellate stage, the document having been admitted in evidence; in other words, there was no bar whatsoever under any law that we are aware of to prevent the Court from using the promissory note as a piece of evidence in support of the plaintiff's story. That apparently has been done and the plaintiff's story has been believed. Under these circumstances there is no point of law which can arise in second appeal and which can be argued successfully. The result therefore is that the judgment of the lower appellate Court must be affirmed and this appeal must stand dismissed with costs.


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