DHONKAL SINGH Vs. HARBANS LAL

JUDGEMENT

(1.) THIS is a defendants appeal in a suit for recovery of money. The plaintiff claimed a sum of Rupees 5,445-12-0 as due to him on two promissory notes, namely, of 18 November 1918 and 13 July 1919, and a bond of 11 February 1919. The plaintiff also claims a sum of Rupees 525 which he had lent under a promissory note of 29 October 1924. The moneys due on the promissory notes and bonds were time barred, but a certain amount of interest had been paid, and by Ex. 6 the defendants, had acknowledged the debts. As the promissory note was not stamped according to law it was not used and could not be produced in proof of the loan of Rs. 525. The defence was that Ex. 6 was a false document and that the defendants had never paid interest as alleged by the plaintiff and had paid up the bond of 11 February 1919 in full. They denied execution of the promissory notes of 18 November 1918 and of 13 July 1919. The learned Subordinate Judge did not believe the evidence of the defendants and has decreed the claim in full: hence the present appeal.

(2.) MR. Kapil Deo Malaviya appearing for the appellants has raised all the points that were raised in the Court below and has laid the evidence before us from which he asks us to hold that Ex. 6 had not been signed or thumb marked as alleged by the plaintiff. After an examination of the evidence we are not satisfied that the appellants have made out the case that Ex. 6 was not executed as alleged by the plaintiff. It was next contended that the Court below should not have granted a decree for the loan of Rupees 525 as the promissory note of 29th October 1924 was inadmissible in evidence and no suit could be brought because the transaction was evidenced by a promissory note and. that promissory could not be adduced in evidence for want of a proper stamp. He has referred to the case of Nazir Khan V/s. Ram Mohan . It was held in that case that when money is lent on a promissory note and the promissory note is inadmissible, it is not open to the plaintiff to recover Ms money by proving orally the terms of the Contract. It is only when the debt is separable from the promissory note that the debt could be proved, although the promissory note was inadmissible in evidence. The case is a Full Bench case and is binding on us. MR. P.L. has submitted that the plaintiff could base his claim upon the acknowledgment contained in Ex. 6 even if he is not able to sue by reason of the promissory note being inadmissible. In support of his contention he has referred to the case of Govind Singh V/s. Bijay Bahadur Singh and of Abdul Rafiq V/s. Bhajan . In our opinion in the present case the acknowledgment was part of the same transaction as the loan by the promissory note and could not be treated as an independent transaction upon which the plaintiff could frame a cause of action. The cases referred to by MR. Banerji are distinguishable on facts. We have therefore come to the conclusion that the decree in favour of the plaintiff must be reduced by a sum of Rupees 730- 12-0. Parties will receive and pay costs in this Court in proportion to success and failure.