MAHADEO TUKARAM MAHAJAN Vs. RAMCHANDRA DEOYYA YELAMI

JUDGEMENT

(1.) THIS is a second appeal by the defendant, the plaintiff having succeeded in both the Courts below. The suit was for a sum due which had been lent to the defendant. It is not disputed that the amount had been lent and the money received, and a plea which was raised that old accounts should be opened was later withdrawn and the sum claimed not disputed. The only ground on which the suit was resisted was that the claim was barred by limitation. Transactions have been going on between the parties for some time, and it is admitted that in December 1930 and June 1931 promissory notes were executed and also some cash passed. A further promissory note was executed on 19th January 1933. This, however, was executed on an insufficient stamp, and the plaint was not filed until 13th January 1936. The plaint stated that consequently the promissory note executed in January 1933 would not be a valid document as a promissory note, but the plaintiff claimed that he was entitled to claim the amount found due on that date independent of the promissory note. The defendant insisted that the claim was time-barred as it was based on the promissory notes of 1930 and 1931 and there was no direct acknowledgment within that time. The plaintiff then asked to be allowed to amend the plaint by pleading explicitly his cause of action apart from the promissory note itself. This application was put in on 8th April 1936, more than three years after the infructuous promissory note and indeed more than three years after the contemporaneous agreement on which the plaintiff relied.

(2.) THE trial Court allowed the amendment subject to an objection on the question of limitation by the other side. The plaint was not actually amended, but nevertheless judgment was given in the plaintiff's favour by the same Judge who had recorded the pleadings and was in charge throughout, and it is clear therefore that the trial Court decided that the application for amendment was not barred by limitation. In addition to this question there were two other points for consideration before the trial Court. One was whether the insufficiently stamped promissory note could be used as an acknowledgment of liability for the debt. This was held in the negative on the authority in Govinda v. Haribhau AIR 1933 Nag 391. The other point, which was whether a separate contemporaneous agreement to pay could be proved despite the fact of the existence of a. document, was held in the plaintiff's favour. In appeal no question was raised as to the correctness of the decision in the Court below that the infructuous promissory note could not operate as an acknowledgment. On the other points the lower Appellate Court agreed with the trial Court except that it did not consider the trial Court correct in stating that the claim to sue on an independent promise could be seen in para. 1 of the plaint, but held that the rule that the promise could be proved independently on failure of the operation of the promissory note was so well known that it was unnecessary to cite authorities.

(3.) TO my mind this is perfectly clear, and the subsequent amendment is no more than a particular amplification of a claim already made. That the agreement existed and has been proved must be taken as a finding of fact, and I agree with the lower Appellate Court that the denial of a separate oral agreement by the defendant in an oral statement had reference only to the supposition that the agreement referred for was not contemporaneous with the execution of the promissory note, and when it was pleaded, again in oral statements, that they were contemporaneous, there was a tacit admission of its existence by a pleading that it was inadmissible as the contract was in writing. I may add that it would indeed be surprising if the plaintiff, admitting from the first that the promissory note -was not valid as such, should not have indicated in his plaint that he was entitled to sue on the basis of a contemporaneous agreement to repay as well as urging the point that the promissory note might be admissible to prove an acknowledgment.