MRS FLORENCE MISRA AND ORS Vs. DAULAT RAM

JUDGEMENT

(1.) THE plaintiff Daulatram Ruchiram Chablani filed suit No. 19 of 1951 in the Court of Civil Judge, Malihabad, Lucknow on 13th February, 1951 against Nawin Chandra Paul Misra claiming a decree for Rs. 12,170. An amendment of the plaint was allowed by the trial Court on 26-10-1951.

(2.) THE plaintiff alleges (in his amended plaint) that in the first week of January 1947 the defendant began borrowing money from the plaintiff. On 1st April, 1950 all advances were added up and after taking more cash the defendant executed a pronote and a receipt for Rs. 11,280 promising to pay the amount with interest at 9 per cent. The plaintiff gave details of the sums advanced. One item was a sum of Rs. 7,000 paid in cash in the first week of January 1947. The plaintiff further pleaded that if the pronote was not admissible in evidence, the plaintiff was entitled to a decree on the basis of the original advances which had been acknowledged four times as mentioned in the plaint, on one occasion by the receipt dated 1-4-1948. The plaintiff claimed a decree for this sum of Rs. 11,280 principal amount advanced and Rs. 890 interest accrued. The cause of action was stated to have accrued on 1-4-1950 (the advance of the loan, promise of interest and execution of receipt and pronote). The plaintiff thus based his claim on a fresh contract on 1 4-1950 on which date "more cash" had been advanced but in the alternative based his claim on the original advance of Rs 7,000 (with which alone we are concerned in this reference) acknowledged in the receipt dated 1-4-1948 (which is the only acknowledgment relied upon before us). In his final written-statement dated 27th November. 195] the defendant denied the plaint case and suggested that the defendant had not taken any loan from the plaintiff.

(3.) WE are not concerned with the question whether Ext. 18 operates as a novation of contract i. e., as evidence of a fresh contract between the parties. It is neither party's casa that the old debt was wiped off and a fresh. loan was advanced. It is important to bear in mind that the plaintiffs case is that on 1-4- 1948, a sum of Rupees seven hundred was paid to him and Ext. 18 was executed in lieu of the principal amount originally advanced in January 1947. That aspect of the matter has not been referred to us and no doubt will be considered by the Bench when the appeal is again placed before it. The Bench may also have to determine the questions of fact mentioned by us earlier which have been assumed to exist in the issues remitted to the trial Court and in the reference made to us. In answering the question put to us, we will confine ourselves to the bara question referred to us leaving all other questions to the Bench hearing the appeal. In the reference we have heard Mr. Dhaon and Mr. Dwivedi. In AIR 1929 All 980, the plaintiff had sued on the basis of a promissory note. The plaint case was not inconsistent with the case that the promissory note was executed in lieu of an old debt. The promissory note was inadmissible in evidence. Niamatullah J., held: