KESAVA IYER Vs. MAHARAJA PILLAI

JUDGEMENT

(1.) THIS appeal arises out of a suit for recovery of the amount due under an instrument purporting to be a promissory note executed by the 1st defendant in favour of the 2nd defendant on 15. 1. 1122 and endorsed by the latter to the plaintiff. Ext. B is the document in question. The 1st defendant admitted having executed Ext. B but he contended that it was not supported by consideration and that the suit was barred by limitation. After trial, the suit was dismissed on the ground of limitation. After trial, the suit was dismissed on the ground of limitation. Findings were not entered on the other issues as the learned Munsiff considered it unnecessary to do so, in view of his finding on the question of limitation. The plaintiff has preferred this appeal from the decree dismissing the suit.

(2.) THE learned Munsiff held that Ext. B was not a promissory note but only a simple bond for which the period of limitation was only three years. He based his conclusion on the ground that an unconditional undertaking to pay a specified amount on demand was absent in Ext. B and that the latter portion of the instrument amounted to an indemnity clause which could not be brought within the definition of a promissory note. He also held that the plaintiff was estopped from contending that the instrument sued on was a promissory note as he had submitted to an order to pay additional stamp duty and penalty on Ext. B which was found to be an insufficiently stamped document at an earlier stage of the suit. THE learned counsel for the 1st respondent rightly conceded that he did not support the decree on the ground of estoppel or that the instrument sued on was a bond.

(3.) "promissory note" has been defined by the travancore Negotiable Instruments Act II of 1075 as "an instrument in writing 'not being a Bank note or a currency note) made on a specified date containing an unconditional undertaking, signed by the maker, to pay a certain sum of money only to or to the order of, a certain person or to the bearer of the instrument. " This definition is substantially the same as in the Indian negotiable Instruments Act XXVI of 1881, the only difference being that that the words "made on a specified date" are absent in the Indian Act. The decisions under the Indian Act are therefore helpful in deciding this question.