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Madras High Court
Natesa Mooppan vs K.R. Ramachendra Aiyar on 13 November, 1914
Equivalent citations: (1914) 27 MLJ 728
Author: K Sastri


JUDGMENT

Kumarasami Sastri, J.

1. The defendant is the petitioner. The plaintiff who is a Vakil practising in Tanjore sued to recover Rs. 136 with costs and further interest alleged to be due on a promissory note dated 28’th July 1909 for Rs. 100 executed by the defendant in his favor. The defendant, while admitting execution pleaded that there was no consideration for the promissory note, that it was obtained from him by the exercise of undue influence and that the note is void as the plaintiff did not file it in Court as required by Section 28 of the Legal Practitioner’s Act. It was also alleged that the suit was barred under Order II, Rule 2, C.P.C. as the plaintiff had obtained another promissory note in respect of fees due to him and had not included this claim in the suit (O.S. No. 351 of 1912) filed on that promissory note. The District Munsif found against the defendant and passed a decree for the amount. There is no evidence to shew that the promissory note was either without consideration or was executed owing to the exercise of undue influence. The defendant examined himself and two witnesses. His first witness who is plaintiff’s
gum stab, states that the plaintiff had paid Rs. 60 which was payable by the defendant to the commissioner and that the promissory note was executed in respect of that sum and also of other sundry items due to the plaintiff. The defendant, who examined himself as his second witness, says that the plaintiff was paying batta, out-fees and all charges in connection with the suit which he (defendant) filed and in which he had engaged the services of the plaintiff. He states that the plaintiff told him that commission fees had to be paid and that he executed the note at plaintiff’s request. Defendant’s third witness says nothing about the promissory note. The plaintiff deposes that Ex. A was executed in consideration of Rs. 60 paid by him as commissioner’s fees, that outfees to the extent of Rs. 15 or 20 had been spent by him in respect of batta, etc., and that defendant had also bonowed from him Rs. 15 or 20 in cash. There is, therefore, ample evidence to show that the promissory note was executed for consideration and. I agree with the District Munsif in holding that the promissory note was executed by the defendant to secure moneys actually due by him to the plaintiff.

2. It has been argued by the counsel for the petitioner that plaintiff has not produced any accounts and that consequently his case ought to be disbelieved. I cannot help remarking that the plaintiff ought to have kept proper accounts and that professional gentlemen who do not keep accounts lay themselves open to a great deal of misconception and suspicion however honest they may be : but in the present case the defendant admits that the plaintiff was paying out-fees and he does not pretend to have made any payment to the plaintiff for out-fees payable by him. His statement that the note was executed by the exercise of undue influence and without consideration is false and under these circumstances, I do not think that the fact that the plaintiff did not keep proper accounts exonerates the defendant from liability to pay the debt actually due.

3. The next question is as regards the validity of the prormissory note having regard to Section 28 of the Legal Practitioner’s Act. It has been held in Subba Pillai v. Ramasami Aiyar (1908) I.L.R. 27 M. 512 that a promissory note obtained by a pleader in respect of out-fees disbursed by him fell within Section 28 of the Legal Practitioner’s Act as being an agreement respecting the amount of payment for charges incurred or disbursements made by the pleader in respect of the suit in which he had been retained and that the note was invalid if it was not filed in court. In the present case it is admitted that the note was not filed in court and therefore the note cannot be sued on. This, however, would not deter the plaintiff from getting a decree in respect of the sums actually spent by him, and in the case above cited a decree was passed for the amount so spent notwithstanding the fact that the promissory note was invalid. In Krishnasami v. Kesava (1890) I.L.R. 14 M. 63 it was held that the fact that the promissory note which was sued upon was invalid owing to its not having been filed in court as required by the Legal Practitioner’s Act did not prevent the court from decreeing the sum which was reasonably due for fees. A similar view was taken in Anantayya v. Padmayya (1902) I.L.R. 26 M. 278.

4. The District Munsif found on the evidence that the sum of Rs. 100 claimed by plaintiff was actually due by defendant and I do not think he erred in passing a decree for the amount. It is argued that the claim to recover moneys alleged to be due would be barred by limitation as the suit on the promissory note was filed on the last day allowed by the law of limitation. The plea of limitation was not raised in the Lower Court and in the present case it involves a mixed question of law and fact as the dates when the payments for out-fees were made do not appear: the question will also arise as to when the proceedings in the suit in which plaintiff was engaged as a Vakil terminated.

5. There is nothing to prevent the promissory note from operating as an acknowledgment of liability even though it may not be sued upon owing to its not having been filed in court as required by the Legal Practitioner’s Act.

6. I do not see how it can be said that the present suit is barred by Rule 2, Order II of the C.P.C. The cause of action in this suit is different from the cause of action in the previous suit and the plaintiff was not bound to join both causes of action in one suit.

7. I am however of opinion that the District Munsif erred in allowing interest at the rate stipulated in the promissory note as the note was not enforceable. There was no contract to pay interest apart from the note and plaintiff has not proved notice in writing so as to bring the case within the Interest Act.

8. I modify the decree of the Lower Court by passing a decree for Rs. 100 with interest from date of decree at 6 p.c. and proportionate costs throughout.


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