PASUPULETI VEERAVENKATARATNAM Vs. KAKIGOTLA BUCHIRAM NARASIMHAMURTHY

JUDGEMENT

(1.) The petitioner brought the suit out of which the Civil revision petition arises for recovering a sum of money said to be due on a promissory note executed by the defendant on 25.3.1959 for a sum or Rs. 290/- borrowed by the defendant from the plaintiff that day. The suit was dismissed by the learned Small cause judge who held that the promissory note was insufficiently stamped that the borrowing and execution of the promissory note were one and the same transaction and that a decree could not therefore be granted on the promissory note in view of Section 35 of the Stamp Act and Section 91 of the Evidence Act.

(2.) Sri P. Ramakrishna Raju, learned counsel for the petitioner contended that even though the promissory note was inadmissible in evidence, the creditor could still sue on the original consideration and recover the money lent by him on the basis of 'money had and received'. I thought such an argument was no longer open to the plaintiff in view of the judgement of the Full Bench of Five judges in Perumal Chettiar v. Kamakshi Ammal I.L.R. 1938 Madras 933. In that case the suit was for recovering a sum of money lent on a promissory note which was insufficiently stamped. The question which was referred to the full bench was 'whether a person who has lent money on a promissory note can sue to recover the debt apart from the note when the note embodies the terms of the contract with the borrower but is inadmissible in evidence owing to a defect in the stamping. The question was answered by Leach, C.J., who delivered the leading Judgement in this way;

(3.) The view expressed by Venkata Subba Rao, J., in Chinnappa Naidu v. Srinivas Naidu 67 M.L.J. 912 . that "even where the loan is antecedent to and independent of the bill but is contemporaneous with it, the lender, when the note turns out to be invalid, can fall back upon the original express or implied, arising from the loan", was expressly overruled.