KRISHNA KUMAR CHATTERJI Vs. MTJAGPATI KUER

JUDGEMENT

(1.) This is an appeal by the plaintiff from a judgment of the Subordinate Judge of Muzaffarpur. The case arose out of the following facts: There was a firm of partners who carried on business under the name of Damri Sahu Halkhori Sahu and the partners in that firm were Damri Sahu and Halkhori Sahu respectively. They carried on business at various places and on the occasion of the transaction in question they were negotiating through the plaintiff as their agent for a contract with a certain sugar mill for the purchase of molasses which is one of the by- products of sugar manufacture. They desired to purchase the out turn of molasses by that particular sugar mill. The plaintiff in November 1926 secured a contract for the firm out of which, if the contract were carried through, he would be paid a remuneration by way of commission. The sugar mill was willing to sell their output of molasses provided that the firm would deposit Rs. 10,000 as-earnest money for the molasses they would buy, within one week. The partner Halkhori Sahu came to Mazuffarpur where the sugar mill was, and was told the terms upon which the mill would be willing to conduct the business. He had not the necessary sum of Rs. 10,000 with him to make the required deposit and therefore he borrowed from the plaintiff a sum of Us. 5,000 and with that money made the required deposit with the sugar mill. To secure the loan Halkhori Earn executed a hand-note promising to repay the loan together with interest at a reasonable market rate. The loan not being repaid and the partners having since died, the plaintiff began this suit against the widow amongst other persons of the partner Damri Sahu and in his plaint he set forth the story of the loan and claimed to re-cover upon the hand- note. He claimed Rs. 5,000 principal lent and interest at the rate of 12 per cent, per annum which he said was the reasonable market rate, according to the contract, for three years.

(2.) When the case came on for hearing before the lower Court, for some reason the defendants were not represented and judgment for the plaintiff went by default, the plaintiff producing the hand-note in question. There was an appeal to the High Court from this decision on the ground that the learned Judge ought not to have given judgment by default but should have given the defendants an opportunity of being heard. The High Court agreed with the contention and remanded the case to be heard upon the merits. The plaintiff went into the witness box and "towards the end of the cross-examination he was asked questions about the hand-note in question, having proved the hand-note on the previous day, (when the hand-note was endorsed by the Judge with a statement that it was admitted to evidence). The further questions on the following day related to this hand-note. He was asked about the cancellation of the stamps which the hand- note bears. The hand-note bears six adhesive stamps, two of them being one- anna each and four others half-anna, and across the half-anna stamp, which is in the right hand bottom corner of the group of stamps, the signature of the executant of the hand-note appears. There also appear two lines drawn across the stamps, one lying across each row from left to right. He was asked whether those lines came into existence at the time of the execution of the note: he said no, the stamps were free at that time from the lines which they now bear and he stated that as a matter of fact that could be demonstrated by a photograph which he had had taken after the note was executed for greater caution. An examination of the hand-note bears out what he says with the result that it would appear that at the time of the execution of the hand-note the right hand bottom corner half-anna stamp alone of the six had been cancelled, the horizontal lines drawn across the rows of stamps having been added at some later time and before the note was tendered as evidence.

(3.) The learned Judge took a somewhat peculiar course. He held that the stamps had not been properly cancelled and that under the Act this was equivalent to the document not being properly stamped and therefore he refused to consider the suit as one brought on the hand-note; but on the merits of the question of whether the loan had in fact been granted or not, he used the hand-note as very good evidence of the loan and gave judgment for the plaintiff for the capital sum, Rs. 5,000 of the loan. He held however that inasmuch as the contract to pay interest was evidenced by the hand-note alone, and that inasmuch as it was not properly stamped it could not be used by the plaintiff, and he declined to grant any decree for interest. From that decision the plaintiff appealed and his appeal is before us. There is also a cross-objection by the defendants to which I will presently refer. The contention on behalf of the appellant is based upon Section 36, Stamp Act, which provides: Where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.