LAWS(PVC)-1932-9-65

ALAPATI ACHUTARAMANNA Vs. VASIREDDI JAGANNADHAM

Decided On September 16, 1932
ALAPATI ACHUTARAMANNA Appellant
V/S
VASIREDDI JAGANNADHAM Respondents

JUDGEMENT

(1.) The petitioner's suit for Rs. 400 and interest thereon was dismissed by the learned District Judge of West Godavari on the ground that the promissory note sued on was inadmissible in evidence as it bore only one anna stamp instead of two annas stamp and that the plaintiff's case which he attempted to make by amendment of the plaint that the loan was given some eight days before the note was not in fact true. Consequently, according to the learned Judge, the loan and the note being contemporaneous, the suit for the loan was not maintainable because the note was inadmissible, vide Muthu Sastrigal V/s. Viswanatha Pandara Sannadhi (1913) I.L.R. 38 Mad. 660 : 26 M.L.J. 19

(2.) In this Court, it is contended for the petitioner that the learned Judge failed to see that both the note and the loan were admitted by the respondent-defendant in his written statement and that consequently by Section 58 of the Indian Evidence Act it was not necessary for the plaintiff-petitioner to prove either the note or the loan. The written statement of the defendant does contain an express admission of the execution of the promissory note as well as an implied admission of the receipt of the loan. The petitioner's contention is that in such cases no question of admissibility of evidence arises because evidence is dispensed with of facts admitted in the pleadings. For the application of that doctrine to this class of cases reliance is placed upon the decision of Anantakrishna Aiyar, J., in Alimane Sahiba V/s. Subbarayudu at 308. In that case, in a suit on a promissory note the defendant in his pleadings admitted execution of the note but pleaded discharge of the note. The note was produced in evidence and marked apparently without question but later on the defendant discovered that the stamp on the note had not been cancelled and he then raised the question that the note was invalid by Section 12 of the Stamp Act. The learned Judge on those facts held that Section 58 of the Indian Evidence Act applied, and, therefore, no question of admissibility of the note arose at all.

(3.) In that sense the note sued on in this case was admitted and no question of admissibility therefore arose. But it is answered that the learned Judge in Alimane Sahiba V/s. Suhbarayudu did not consider the effect of the language of Section 35 of the Stamp Act which says not merely that unstamped instruments must not be received in evidence but that they must not be acted upon. It was urged that on the latter part of this language it has been held in Chenbasapa V/s. Lakshman Ramchandra (1893) I.L.R. 18 Bom. 369, following the decisions of the Calcutta High Court, that in spite of waiver of proof by an admission under Section 58 of the Indian Evidence Act, a note or other instrument insufficiently stamped cannot be acted upon or decree given upon it. I have not been referred to anything to contradict this and I must therefore hold that so far as admission of the inadmissible note is concerned, Section 58 of the Indian Evidence Act does not avail the petitioner, for in respect of it no decree can be given on the note as, to do so, would be acting upon the note.