MAHATABUDDIN MIA Vs. MAHAMMAD NAZIR JODDAR

JUDGEMENT

(1.) The plaintiff's case is that on 14 Chaitra 1334, corresponding to 28 March 1928, the defendant borrowed from him a sum of Rs. 629 and executed in his favour a promissory note for the said sum of money on the same date with a stipulation to pay interest at Rs. 3-2-0 per cent per month. He filed his suit on 5 March 1931, and in the plaint as originally filed he based his claim on the promissory note. But as the promissory note was insufficiently stamped, and so inadmissible in evidence he applied for amendment of the plaint. The said application for amendment was allowed by the Court on 25 February 1,932. The amended plaint proceeded upon the footing that the plaintiff was entitled to recover back the money lent independently of the promissory note. The learned Munsif held that the sum of Rs. 629 had in fact been lent by the plaintiff to the defendant. He accordingly made a decree in favour of the plaintiff for Rs. 629, but reduced the rate of interest to Rs. 1-4-0 per cent per month. At the trial the plaintiff led evidence to prove not only the advance of the said money to the defendant by way of loan but went a step further and attempted to prove that before the promissory note was executed the defendant made a verbal promise to repay the amount with interest at the rate of Rs. 3-2-0 per cent per month. The defendant preferred an appeal to the learned District Judge. The said appeal was heard by the learned Additional District Judge. The learned Judge held that the evidence of an independent oral promise by the defendant to repay the money with interest was unreliable. He held that such being the case the plaintiff could not recover except with the aid of the promissory note which could not be admitted in evidence as it was insufficiently stamped. He accordingly dismissed the plaintiff's suit without recording any finding as to whether the defendant took Rs. 629 from the plaintiff as a loan.

(2.) In my judgment the learned Judge is wrong in his views. He seems to labour under the impression that the plaintiff, in order to succeed on the plaint as amended, was required to prove an independent express contract prior to the execution of the promissory note. The law as laid down in the cases of this Court, however, is that the plaintiff is entitled to recover if he has a cause of action independent of the promissory note. Sir Comer Petheram, C. J., pointed out in Pramatha Nath Sanyal Vs. Dwarka Nath Dey (1896) 23 Cal 851, where the observation of Garth, C. J., in Sheikh Akbar V/s. Sheikh Khan (1881) 7 Cal 256 was considered, and explained that: An implied contract to repay money lent always arises from the fact that the money is lent, even though no express promise, either written or verbal, is made to repay it.

(3.) The fact that money has been lent therefore gives a cause of action to the plaintiff which is independent of the promissory note. In my judgment as soon as the plaintiff in such a case proves that he paid to the defendant a sum of money by way of loan, he is entitled to get back the money lent with interest, though the promissory note cannot be introduced in evidence on the ground of insufficiency of the stamps. The view I am taking is in accord with the preponderance of authority of this Court which have been reviewed in the judgment of Mukherjee, J., in Abdul Rabbani V/s. Shyam Lal Thapa (1930) 34 C W N 554 and in the judgment of Sir Harold Derbyshire, C. J., in East Bengal Commercial Bank Ltd. V/s. Surendra Narayan Saha A F O D No 287 of 1930, decided on 13 February 1935. I accordingly set aside the judgment and decree of the lower appellate Court and remand the appeal to that Court so that the appeal may be decided in accordance with the observations made above. The most important point for that Court to consider would be whether the plaintiff had paid to the defendant the sum of Rs. 629 or any sum by way of loan. If it answers the said question in the affirmative it will confirm the decree of the Munsif. The appeal is accordingly allowed and the case remanded to the lower appellate Court. The costs of this appeal to abide the result.