DULA MEAH Vs. MOULAVI ABDUL RAHAMAN

JUDGEMENT

(1.) The plaintiff sued the defendant No. 1, who is the petitioner in this Rule, on a bond in the Court of the Small Cause Court Judge at Lakhipur. The plaintiff's case was that the petitioner took a loan of Rs. 25 from him and executed a simple bond for Rs. 25 in favour of one Mafizulla who was the plaintiff's benamdar and was made defendant No. 2 in the suit. The petitioner admitted having taken a loan of Rs. 15 only from defendant No. 2 and having executed a bond for this amount in his favour and alleged that the amount due on this bond had been paid to defendant No. 2. The judgment of the Small Cause Court Judge was as follows :" Payment of the bond is not proved save as to Rs. 5. Rs. 15 seems to be changed as Rs. 25. Defendant No. 2 does not file W.S.I find that Rs. 15 were paid and the bond is due." He decreed the suit for Rs. 38 but did not allow costs.

(2.) The petitioner relying on the doctrine of Master V/s. Miller (1791) 1 Sm. L.C.(11 Ed.) 767 : 4 T.R. 320 : 2 R.R. 399 : 100 E.R. 1042 contends that as it has been found that there was a material alteration of the bond, the claim based onit should not have been decreed. The contention cannot be disputed, but on behalf of the plaintiff opposite party it is urged that though he cannot successfully base a claim on the bond he is entitled to a decree on proof of the loan by independent evidence. Reliance is placed on the decision of Panton, J., and myself in an unreported case, Rule No. 708 of 1921, decided on the 17 February 1922. In that case a suit brought on an altered bond had been dismissed and we held that the plaintiff was entitled to a decree for the money found to have been advanced. On behalf of the petitioner it is pointed out that the debtor was not represented at the hearing of the case. It is suggested that on that account we overlooked an important difference in the case on which we based our decision: Moti Lal Saha V/s. Monmohan Gossami 5 C.W.N. 56. That was a case where the whole bond was held to be a forgery and it was not a case of material alteration. Still this decision though not directly in point is important in its reliance on the decision in the case of Pramatha Nath Sandal V/s. Dwarka Nath Dey 23 C. 851 : 12 Ind. Dec. (N.S.) 565. In that case it was held that "an implied contract to re-pay money lent arises from the fact that the money is lent, even though no express promise, either written or verbal, is made to re-pay it. Therefore, in a case where the defendant admits the loan, and has not repaid it the plaintiff may maintain an action against him for breach of his promise or contract, entirely independent of any security which may have been given for the advance." That was a case in which the hathchitta on which the plaintiff relied was improperly stamped but the principle is equally applicable to the present case. This decision been dissented from by a Single Judge of the Allahabad High Court in Parsotam Narain V/s. Taley Singh 26 A. 178; A.W.N. (1903) 217. But it was cited as an authority by a Divisional Bench of this Court in the case of Ram Bahadur V/s. Dusari Ram 19 Ind. Cas. 840 : 17 C.L.J. 399, where it was held that where a claim is founded on the original consideration it can be enforced provided that the original consideration has not merged in the bond or the promissory note which is excluded from evidence. A later case of the Allahabad High Court Banarsi Prasad V/s. Fazal Ahmad 28 A. 298 : 3 A.L.J. 25; A.W.N. (1906) 9 was also there cited in support of this principle. On behalf of the respondent reliance is placed on the case of Gour Chandra Das V/s. Prosanna Kumar Chandra 33 C. 812 : 3 C.L.J. 203 : 10 C.W.N.783 and more particularly on the remarks at page 819. These were not necessary for the decision of the case and I can find no decided authority that the material alteration of a written contract destroys the original debt if the debt is not merged in the written contract. If the written contract is a negotiable instrument this would usually happen. But in the case of a simple bond I would hold that the alteration prevents a suit being based on the bond, and that the question whether a suit would lie on the original debt depends on whether there is a separate contract which can be proved apart from the bond.

(3.) In the present case I would hold that the authorities support the opposite party's contention that he is entitled to recover the loan if he can establish his claim on evidence apart from the bond. But in the present case the findings have been arrived at after treating the bond as evidence and it cannot be said whether the defendant would have been found liable if the bond had been excluded. The claim on the original debt is on the face of it barred by limitation. As a suit on the bond, limitation was saved by the proof of a payment of Rs. 5 which was alleged to be a payment of interest as such. But apart from the bond no contract to pay interest can be proved and on the findings arrived at there is nothing that would extend the period of limitation.