GHULAM MURTAZA Vs. MTFASIUNNISSA BIBI

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for recovery of a certain sum of money with interest. Originally the claim was based on two promissory notes of January 1925 a December, 1927; but later the plaintiff got the plaint amended and claimed to recover an earlier debt, the time being saved by the alleged acknowledgments of 1925 and 1927. The cause of action alleged in the amended plaint was the date on which the liability of the debt was admitted by the defendant. The trial Court dismissed the suit, holding that the claim was barred by time. The lower appellate Court has come to a contrary conclusion and has decreed the claim, holding that the acknowledgment of the old debt saved time. The learned Judge had relied on the case of Govind Singh V/s. Bijoy Bahadur Singh 1929 All. 980, in support of his view.

(2.) In that case Niamatullah, J., certainly was inclined to take the view that an acknowledgment, clear and unconditional, can itself be the foundation of an action I concurred in the order on the ground that the recitals in the receipt along with the circumstances indicated that there was a renewal of previous debt, so that cither the previous debt had been acknowledged afresh or had been substituted by a new contract including a fresh promise to pay. It is noteworthy that in that case, although the promissory note was inadmissible in evidence as being insufficiently stamped, the receipt was admissible, and it had been executed before the expiry of the period of limitation for suing upon the earlier debt. Accordingly no question of any express acknowledgment in writing of a time-barred debt within the meaning, of Section 25, Contract Act, arose in that case. The previous debt had not become barred by time and the Bench in that case came to the conclusion that there had been a novation of the contract.

(3.) A Full Bench of this Court in Nazar Khan V/s. Ram Mohau 1931 All. 183, laid down that where there is a completed cause of action for recovery of money on foot of a distinct and separate transaction, and a promissory note is given as a collateral security, the plaintiff is entitled to sue for the original consideration, even if,, for some flaw in the promissory note the promissory note itself may not be sued upon, being inadmissible in evidence; but where the making and handing over of the note and the payment of the money are "concurrent conditions" (i.e., part and parcel of the same transaction), then if the promissory note turns out to be inadmissible in evidence for any reason, it is not open to the plaintiff to recover his money by proving orally the terms of the contract. The result of this pronouncement is that where the debt is separable from the promissory note, the transaction being truly independent of it and not part of the transaction of the promissory note, the debt can be proved although the promissory note was not admissible in evidence, but where it is part and parcel of the same transaction the debt cannot be separately proved.