JACOB AND CO Vs. APVICUMSEY

JUDGEMENT

(1.) The plaint in this suit states that the plaintiffs on April 9, 1923, lent and advanced to the defendants Rs. 1,500,at interest and that the defendants passed a writing in the plaintiffs favour evidencing the said loan and promising to pay the said amount three months after sight.

(2.) The plaint then goes on to say that the plaintiffs presented the said writing to the defendants for sight about January 1925 and by their attorneys letter of March 1, 1926, called on the defendants to repay the said sum. The claim is for the Rs. 1,500 and interest. The defendants Kallianji Vardhman appears in person and he admits that Rs. 1,500 ware due but he says on certain rice transactions, and pleads payments, so that he admits that there was a debt but pleada discharge of it.

(3.) The first point for consideration is whether the suit is based on the document Ex. A, and whether the plaintiffs can maintain their suit as on the loan. Various authorities have been cited to me. It was held in Krishnaji V/s. Rajmal [1899] 24 Bom. 360 that a transaction similar to the transaction in suit may be regarded as a loan in respect of which the promissory note is passed as payment and if the promissory note is insufficiently stamped, as in the present case, the plaintiff can proceed with the suit on the loan. That decision is binding on me. It appears to conflict with the provisions of Section 91, III. (b), of the Indian Evidence Act, which says nothing about notes being passed in payment of loans, but purely and simply that if a contract is contained in a bill of exchange, the bill of exchange itself must be proved. The purport of the authorities seems to me to establish the following propositions and the distinctions between the different cases may often be almost artificial but they are in my opinion established by the authorities which have been cited.