YALAVARTHI GOPALA RAO Vs. BOMMISETTY SESHAIAH

JUDGEMENT

(1.) The plaintiff in O. S No. 314 of 1972 on the file of the court of the 1st Additional Dist. Munsif, Vijayawada, is the petitioner. The revision is directed against the order of the lower court refusing to amend the plaint. The suit is filed on the basis of a promissory note which was held to be not admissible in evidence on the ground that it was insufficiently stamped. The amendment sought for is to base the suit on the original cause of action. The Lower Court refused the amendment on the ground that on the date of the amendment petition the suit would be barred by time and if the amendment is to be allowed at that stage it would work to be an injustice to the defendant by depriving him of a valuable defence based on limitation which cannot be compensated by costs. In coming to that conclusion the lower court mainly relied on a decision of this court in Indiamudi Veeraiah v. Kamala Mining Corporation, (1973) 1 Andh WR 5 = (AIR 1973 Andh Pra 170) on the ground that the facts in the present case are more or less similar if not identical with the facts of that case.

(2.) All the facts necessary to base the suit on the original cause of action have already been pleaded in the plaint as originally filed. The allegations made in the plaint are as follows: The defendant purchased from the plaintiff a flour and oil mill on 7-10-1968 for a sum of Rs. 4,500/- and paid a sum of Rs. 3,000.00in cash on the same day and for the balance of the sale consideration of Rs. 1,500.00 he executed the suit promissory note in favour of the plaintiff on 7-10-1968 agreeing to pay the same with interest at 12% per annum to the plaintiff or his order by the end of February, 1969. After the due date at the end of February, 1969 the plaintiff demanded the defendant many a time for the payment of the amount, but the defendant failed to comply with the demand. Therefore the plaintiff got issued a registered notice on 16-11-1971 demanding payment of the amount. But the defendant refused to receive the notice nor did he make the payment. Therefore, the suit is filed for recovery of the amount due under the suit promissory note. The suit is filed on 25-2-1972 within three years from the end of February, 1969, the time stipulated in the promissory note for payment.

(3.) The promissory note was not payable on demand. Therefore as provided under Article 29, Item b of Schedule A to the Indian Stamp Act the stamp duty payable on a bill of exchange, which is higher than the duty payable on a promissory note payable on demand has to be paid. But as the promissory note was stamped only with stamp duty as on a promissory note payable on demand it came to be stamped insufficiently and accordingly became inadmissible in evidence. When it was so found by the lower court, the petitioner came forward with the amendment petition to fall back on the original cause of action.