K ANANTHARAJAIAH Vs. SHIVARAMAIAH

JUDGEMENT

(1.) The Plaintiff in Original Suit No. 853 of 1961 is the appellant in this Second Appeal. The plaint allegations are that the defendant borrowed a sum of Rs. 1000 agreeing to pay the same back with interest thereor at the rate of 1 per cent per mensem. It is undisputed that on that very day the defendant not merely executed a consideration receipt as mentioned in paragraph 1 of the plaint but also executed a promissory note. There is no reference to the promissory note in the plaint and it has been made clear by the plaintiff that the suit is based on the original cause of action and not on the basis of the promissory note executed on that day. The learned Munsiff held that the plaintiff had advanced a sum of Rs. 1,000 as a loan to the defendant but the loan and the execution of the promissory note were part of the same transaction. The learned Munsiff also states in his judgment that even the plantiff has not deposed in his evidence that the amount borrowed is independent of the execution of the promissory note in his favour In view of this. The learned Munsiff held that the plaintiff cannot fall back on the original cause of action. Therefore he dismissed the suit. On appeal the learned Civil Judge Mandya, in Regular Appeal No. 85 of 1963 came to the same conclusion. Referring to the evidence of P. W. 2, the learned Judge holds that the loan referred to by the plaintiff is contemporaneous with the execution of the promissory note and the consideration receipt and they form one transaction. Exhibit P--1 is the consideration receipt produced by the plaintiff. It recites that the defendant had received a sum of Rs. 1,000 being the amount due in respect of the promissory note executed on that day. This document clearly indicates that the payment of the amount referred to in it is made with reference to the promissory note executed by the defendant on that very day and thus there is clear indication that the loan referred to by the plaintiff is not separable from the promissory note, being in any manner antecedent to the document or otherwise a separate transaction. The learned Judge, therefore concurred with the finding of the trial Court that the advance of money and the execution of promissory note constituted one transaction and inseparable. This promissory note is insufficiently stamped and has not been put in evidence and the plaintiff has tried to by-pass the promissory note by basing the suit on the original cause of action. Admittedly the transaction is evidenced by writing which is inadmissible in evidence. The plaintiff's suit is dismissed as not maintainable by both the Courts. It is against this judgment and decree that the plaintiff has preferred this second appeal.

(2.) Sri Balagopal, the learned counsel for the appellant, contends that though the findings of the courts below are that the advance of money by the plaintiff and the execution of the promissory note form one and the same transaction, it is yet possible to treat the advance of money as loan and the execution of the promissory note as a mere piece of evidence to indicate that the loan was advanced. The question as to whether the holder of the promissory note which is inadmissible in evidence on account of its being insufficiently stamped or otherwise inadmissible, can file a suit on the original cause of action, has been the subject matter of consideration in several decision. The basic decision in this connection is the one reported in (1881) ILR 7 Cal 256, Sheikh Akbar v. Sheikh Khan. This decision is relied upon by the Chief Court of Mysore in (1928) 6 Mys LJ 157 and it is observed as follows:

(3.) In this case, as found by the courts below the transaction referred to in the plaint is contained in the promissory note. It is executed on the date when the loan is advanced and that document is inadmissible in evidence as it is insufficiently stamped. The other decision to which a reference may be made is AIR1957 Mad 715 . Rangaswami Reddy v. Doraiswami Reddy. It was held therein that all the terms of the contract between the plaintiff and defendant in respect of the loan were reduced to writing and embodied in the promissory note as in this case. The learned Judges held that the payment of the amount as loan being simultaneous with the execution of the promissory note Section 91 of the Evidence Act would be an abvious bar to the admission of any evidence aliunde to prove the passing of consideration under the promissory note. This indicates that once a transaction is evidenced by an instrument in writing, Section 91 would be a bar to prove the terms of the contract otherwise. Section 91 of the Evidence Act reads as follows: