JAGJIVANDAS BHIKHABHAI Vs. GUMANBHAI NAROTTAMDAS

JUDGEMENT

(1.) This Letters Patent Appeal is directed against a judgment given by Raju J. in Second Appeal confirming a decree passed in appeal by the District Judge Broach dismissing a suit filed by the plaintiff to recover a sum of Rs. 5 100 alleged to have been lent and advanced by the plaintiff to the defendant on 21st June 1949. The defendant had also according to the plaintiff executed in favour of the plaintiff an instrument in writing dated 21st June 1949 in respect of this loan but since in the view of the plaintiff the instrument appeared to be a promissory note and on that view the instrument being unstamped would be inadmissible in evidence the plaintiff sued on the original cause of action. The defendant admitted execution of the instrument but his defence was that no moneys were lent and advanced to him against the instrument on 21 June 1949. According to the defendant the instrument though dated 21 June 1949 was actually executed on 14th June 1949 and the circumstances under which it came to be executed were as follows. On 16th January 1948 the defendant had executed a Khata for Rs. 3 0 in favour of the plaintiff and the amount due under that Khata with interest was outstanding on 14th June 1949. The defendant was an agriculturist and the last date for making an application for adjustment of the debts of the defendant under the Bombay Agricultural Debtors Relief Act 1948 was expiring on 15th June 1949. The plaintiff therefore approached the defendant on 14th June 1949 and asked him to square up the existing Khata and to pass a new Khata in favour of the plaintiff bearing date 21 June 1949. The date 21st June 1949 was suggested by the plaintiff because that being a date subsequent to 15th June 1949 the plaintiff expected that if the new Khata was dated 21st June 1949 that would enable him to avoid the consequences of the Bombay Agricultural Debtors Relief Act 1948 Now the amount due under the existing Khata was Rs. 3 0 by way of principal and Rs. 2651by way of interest upto 21 June 1949. The defendant was also in arrears of rent in respect of the lands held by him as a tenant of the plaintiff and those arrears amounted to Rs. 169-9-0. The aggregate amount of indebtedness of the defendant as on 21st June 1949 was therefore Rs. 3 434 The plaintiff lent and advanced a further sum of Rs. 1 665 to the defendant on 14th June 1949 in order to enable the defendant to purchase an engine for better cultivation of the lands and the total amount due and payable by the defendant to the plaintiff thus came to Rs. 5 100 In respect of this indefendant the defendant executed the instrument in question in favour of the plaintiff on 14th June 1949 but the instrument was dated 21st June 1949 at the instance of the plaintiff with a view to getting out of the provisions of the Bombay Agricultural Debtors Relief Act 1948 The defendant on these allegations contended that the transaction having taken place on 14th June 1949 the suit filed on 20th June 1952 was barred by the law of limitation and the plaintiff was not entitled to recover any amount from the defendant. The learned trial Judge accepted the story put forward on behalf of the plaintiff and decreed the suit against the defendant. On appeal by the defendant however the learned District Judge held that the plaintiff had failed to establish that he bad lent and advanced a sum of Rs. 5 100 to the defendant on 21st June 1949 and that the story narrated by the defendant appeared to be more probable namely that the transaction had taken place on 14th June 1949 and that the amount of Rs. 5 100 was made up of the amount due under the previous Khata the arrears of rent and the further amount of Rs. 1 665 lent and advanced by the plaintiff to the defendant on that day as alleged by the defendant. The learned District Judge took the view that though the plaintiffs case was not established a decree could have been passed in favour of the plaintiff on the case of the defendant but the suit having been filed on 20th June 1952 more than three years after the date of the accrual of the cause of action was clearly time-barred. The learned District Judge in the result allowed the appeal and dismissed the suit. The plaintiff thereupon preferred a Second Appeal in this Court but the Second Appeal was dismissed by Raju J. Hence the present appeal with leave of the learned Judge obtained under Clause 15 of the Letters Patent.

(2.) This being a Letters Patent appeal against a decision given in Second Appeal the facts as found by the learned District Judge must be accepted as final and binding and the Letters Patent Appeal must be decided on the basis of those facts. As we have pointed out above according to the learned District Judge the plaintiff failed to establish that he lent and advanced a sum of Rs. 5 100 to the defendant on 21st June 1949 which was the case with which he came to the Court. Ordinarily therefore the plaintiff would not be entitled to obtain a decree against the defendant and the decision dismissing the suit of the plaintiff would be unassailable. But contended Mr. N. C. Shah learned advocate appearing on behalf of the plaintiff the plaintiff was still entitled to succeed on the case of the defendant which was held established by the learned District Judge. The learned District Judge held that on 14th June 1949 a sum of Rs. 5 100 was due and payable by the defendant to the plaintiff and that amount was made up of a sum of Rs. 3 265/being the amount due under the Khata dated 16th January 1948 a sum of Rs. 169-9-0 being the arrears of rent and a sum of Rs. 1 665 being the amount lent and advanced by the plaintiff to the defendant on that day and according to the contention of Mr. N. C. Shah the plaintiff was entitled to recover this amount from the defendant. This contention would have certainly had great force for it is now well-settled that even if a plaintiff fails to establish his case he can yet get a decree on the case of the defendant but the effective answer given to this contention on behalf of the defendant was that the plaintiffs claim on this basis was barred by the law of limitation. Now it is indisputable that the plaintiffs claim based on this cause of action would be barred by the law of limitation since the suit was filed as late as 20th June 1952. But Mr. N. C. Shah on behalf of the plaintiff rejoined by saying that the plaintiffs claim was saved from the bar of limitation by reason of the acknowledgment of liability contained in the instrument executed by the defendant in favour of the plaintiff and since the instrument was dated 21st June 1949 the suit was within time. Now unfortunately for the plaintiff the instrument was not tendered in evidence at the trial of the suit and no reliance could therefore be placed on it on behalf of the plaintiff. However we may point out that if the instrument were otherwise admissible we should have even in this Letters Patent Appeal admitted the instrument in evidence since we find that the execution of the instrument has throughout been admitted by the defendant. But we are of the view that the instrument is not admissible in evidence and our reasons for taking that view are as follows.

(3.) The instrument is in our opinion a promissory note within the meaning of sec. 2(22) of the Indian Stamp Act and being unstamped it is inadmissible in evidence. Sec. 2(22) of the Indian Stamp Act defines a promissory note to mean a promissory note as defined by the Negotiable Instruments Act 1881 and also includes a note promising the payment of any sum of money out of any particular fund which may or may not be available or upon any condition or contingency which may or may not be performed or happen. Since the first part of the definition of promissory note given in sec. 2(22) of the Indian Stamp Act defines a promissory note by reference to its definition in the Negotiable instruments Act 1881 we must go to the Negotiable Instruments Act 1881 to see how it is defined in that Act. Sec. 4 of the Negotiable Instruments Act. 1881. defines a promissory note in the following terms:-