SIVABAGTHAMMAL Vs. THANGAPPA NADAR

JUDGEMENT

(1.) THE second appeal arises out of O.S. 54 of 1966 which is a suit for recovery of Rs. 4094 -90, The case of the plaintiff is that in the morning of 24 -4 -1964, the defendant took a hand loan of Rs. 3,500 from the plaintiff for family expenses agreeing to repay with interest at 9 per cent per annum and on that very day in the evening the defendant executed a stamped receipt in token of having received this amount. Therefore, the suit is filed on the original debt, the receipt even if it be a promissory note, being insufficiently stamped.

(2.) IN the written statement the defendant contended that he never executed any receipt nor did he borrow any hand loan at all. His further case was that the plaintiff requested the defendant to sell one of his cows and thereupon it was sold for Rs. 220, that purporting it to be a receipt for the payment of the said sum of Rs. 220 the suit promissory note has been taken from him stealthily and that in any event the suit document is inadmissible in evidence as not being duly stamped and that the suit based on the original cause of action is not maintainable The trial court dismissed the suit holding that the suit promissory note was insufficiently stamped and further held there was no borrowing by the defendant.

(3.) A careful reading of the plaint will clearly show that the borrowing is in the morning of 24 -4 -1964 and in the evening the promissory note came to be executed. Therefore the courts below are not right in holding that the suit cannot be maintained on the original cause of action. I say so because the very Full Bench judgment on which both the courts below relied - Perumal v. Kamakshi, AIR 1938 Mad 785 (FB) -clearly lays down whether a suit lies on the debt apart from the instrument therefor depends on the circumstances under which the instrument was executed. If really the instrument is only an evidence of the lending, certainly the suit will lie. In this connection, I may usefully refer to the observations of the Full Bench made at page 789 -