JOSEPH Vs. THOMAS

JUDGEMENT

(1.) I hardly see any reason to interfere with the order. In the first place, the order of remand was made by the court below on a joint request made by the counsel on both sides. Para. 7 of the judgment of the learned appellate judge would bear out this fact. Learned Judge observes: "learned counsel appearing for both parties, also requested for a remand in the light of this order. The learned counsel appearing for the respondent submitted that he has to file an additional written statement and that the plaintiff should not be allowed to adduce fresh evidence on the execution of Ext. P1 and thus reopen the case in that regard and that he should be directed to confine to the alleged original consideration pleaded by him" The remand was accordingly made restricting the plaintiff in the following terms: "the plaintiff will not be entitled to adduce any fresh evidence on the question of execution of Ext. P1". In view of the above circumstances, I fail to see any good faith in the present appeal. Learned counsel argues that a cause of action based on the original consideration will be available to the plaintiff in a case of this nature under two circumstances only and they are: (1) The plaint is based on a promissory note not admissible in evidence; and (2) The claim on the promissory note is barred by limitation. I do not think the plaintiff's claim on the original consideration can be restricted like that.

(2.) EVEN if the instrument turns out to be a forgery, the executee will have the right to fall back upon the original cause of action. "if the instrument given is invalid for want of stamp, or if it turns out to be a forgery, or if the debtor knew of the insolvency of one or more of the parties to the bill at the time of transfer, or if it is void owing to a material alteration, the creditor does not lose his right of action on the original debt by the mere fact of his having taken the instrument as absolute payment of the debt If the instrument is dishonoured, payment of the original debt may be enforced as if no security has been taken. " (Bhashyam & Adiga,11th Edition p. 572 & 573 ). The position is also covered by other authorities. In murugappa v. Nachiappa (AIR. 1934 Mad. 503) for instance, Stone, J held: "where a cause of action for money lent is once complete in itself and the debtor afterwards gives a promissory note to the creditor for payment of the money at a future time, the creditor, if the promissory 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 promissory note under such circumstances as to make the debtor liable upon it to some third person. " A Division Bench of the Allahabad High Court held in gopinath v. Srimati Chemsli (ILR. 1938 Allahabad 741) that in a case where the promissory note is found not genuine the executee can sue on the original cause of action. The following are the facts of that case: "two firms had dealings with each other extending over a large number of years; there were transactions on each side creating independent obligations on the other; accounts were drawn up between the parties at the end of every year; some times the balance was in favour of one firm and some times in favour of the other. A balance was struck, in the usual course, on 31st March, 1928, when Rs. 54 thousand odd was found due to the plaintiff's firm, and a promissory note for the amount was executed by the defendant No. l. The balance struck on 31st March, 1929, was for Rs. 57 thousand odd in favour of the plaintiff's firm, including the previous Rs. 54 thousand, and a promissory note was executed for the amount by defendant No. I. Neither of the defendants signed the account books on these occasions. The account was never closed and the parties continued to deal with each other on the old footing. The plaintiff brought a suit for recovery of the amount, setting forth all these details in the plaint. The promissory notes were found to be not genuine; it was found, however, that the circumstances were such that the plaintiff, who was a pardanashin lady of mature age, could not be held responsible for the production of the promissory notes. " It was held on these facts that in the circumstances, the plaintiff was entitled to fall back upon the original cause of action namely the transactions entered in the account which were antecedent in fact as well as in time to the promissory notes, and truly independent of them. It is thus clear that the cause of action on the original consideration is always available to the party. The amendment therefore, was proper. The judgment of the lower appellate court is hence correct and in confirmation of it, this civil Miscellaneous Appeal is dismissed. . .