JUDGMENT
Newbould, J.
1. The plaintiff sued the defendant No. 1, who is the petitioner in this Rule, on a bond in the Court of the Small Cause Court Judge at Lakhipur. The plaintiff’s case was that the petitioner took a loan of Rs. 25 from him and executed a simple bond for Rs. 25 in favour of one Mafizulla who was the plaintiff’s benamdar and was made defendant No. 2 in the suit. The petitioner admitted having taken a loan of Rs. 15 only from defendant No. 2 and having executed a bond for this amount in his favour and alleged that the amount due on this bond had been paid to defendant No. 2. The judgment of the Small Cause Court Judge was as follows :” Payment of the bond is not proved save as to Rs. 5. Rs. 15 seems to be changed as Rs. 25. Defendant No. 2 does not file W.S.I find that Rs. 15 were paid and the bond is due.” He decreed the suit for Rs. 38 but did not allow costs.
2. The petitioner relying on the doctrine of Master v. Miller (1791) 1 Sm. L.C.(11th Ed.) 767 : 4 T.R. 320 : 2 R.R. 399 : 100 E.R. 1042 contends that as it has been found that there was a material alteration of the bond, the claim based onit should not have been decreed. The contention cannot be disputed, but on behalf of the plaintiff opposite party it is urged that though he cannot successfully base a claim on the bond he is entitled to a decree on proof of the loan by independent evidence. Reliance is placed on the decision of Panton, J., and myself in an unreported case, Rule No. 708 of 1921, decided on the 17th February 1922. In that case a suit brought on an altered bond had been dismissed and we held that the plaintiff was entitled to a decree for the money found to have been advanced. On behalf of the petitioner it is pointed out that the debtor was not represented at the hearing of the case. It is suggested that on that account we overlooked an important difference in the case on which we based our decision: Moti Lal Saha v. Monmohan Gossami 5 C.W.N. 56. That was a case where the whole bond was held to be a forgery and it was not a case of material alteration. Still this decision though not directly in point is important in its reliance on the decision in the case of Pramatha Nath Sandal v. Dwarka Nath Dey 23 C. 851 : 12 Ind. Dec. (N.S.) 565. In that case it was held that “an implied contract to re-pay money lent arises from the fact that the money is lent, even though no express promise, either written or verbal, is made to re-pay it. Therefore, in a case where the defendant admits the loan, and has not repaid it the plaintiff may maintain an action against him for breach of his promise or contract, entirely independent of any security which may have been given for the advance.” That was a case in which the hathchitta on which the plaintiff relied was improperly stamped but the principle is equally applicable to the present case. This decision been dissented from by a Single Judge of the Allahabad High Court in Parsotam Narain v. Taley Singh 26 A. 178; A.W.N. (1903) 217. But it was cited as an authority by a Divisional Bench of this Court in the case of Ram Bahadur v. Dusari Ram 19 Ind. Cas. 840 : 17 C.L.J. 399, where it was held that where a claim is founded on the original consideration it can be enforced provided that the original consideration has not merged in the bond or the promissory note which is excluded from evidence. A later case of the Allahabad High Court Banarsi Prasad v. Fazal Ahmad 28 A. 298 : 3 A.L.J. 25; A.W.N. (1906) 9 was also there cited in support of this principle. On behalf of the respondent reliance is placed on the case of Gour Chandra Das v. Prosanna Kumar Chandra 33 C. 812 : 3 C.L.J. 203 : 10 C.W.N.783 and more particularly on the remarks at page 819. These were not necessary for the decision of the case and I can find no decided authority that the material alteration of a written contract destroys the original debt if the debt is not merged in the written contract. If the written contract is a negotiable instrument this would usually happen. But in the case of a simple bond I would hold that the alteration prevents a suit being based on the bond, and that the question whether a suit would lie on the original debt depends on whether there is a separate contract which can be proved apart from the bond.
3. In the present case I would hold that the authorities support the opposite party’s contention that he is entitled to recover the loan if he can establish his claim on evidence apart from the bond. But in the present case the findings have been arrived at after treating the bond as evidence and it cannot be said whether the defendant would have been found liable if the bond had been excluded. The claim on the original debt is on the face of it barred by limitation. As a suit on the bond, limitation was saved by the proof of a payment of Rs. 5 which was alleged to be a payment of interest as such. But apart from the bond no contract to pay interest can be proved and on the findings arrived at there is nothing that would extend the period of limitation.
4. I would, therefore, make this Rule absolute and reverse the judgment and decree of the Small Cause Court Judge and dismiss the suit with costs and allow the petitioner his costs in this Court with hearing fee one gold mohur.
5. Rankin, J.–I agree in the order proposed. The learned Judge on his own findings was dealing with a fraudulent suit brought upon a pretended bond for Rs. 25. He found that when in the custody of the plaintiff the document sued on had been altered from Rs. 15 to Rs. 25. Though he granted sanction to prosecute he found that “the bond is due” and decreed the suit for Rs. 38, this being the true amount of principal and interest due in his opinion under the bond as it originally stood. No other interpretation of his decision seems possible.
6. In my opinion this is wholly contrary to law and can be corrected under Section 25 of the Provincial Small Cause Courts Act, 1887.
7. To the bond pleaded and tendered in evidence the defendant has the simplest of all defences–non est factum. If the plaintiff asked leave to amend his claim and sue upon the bond as it originally stood such leave should have been refused [Gogun Chunder Ghose v. Dharani Dhar Mandal 7 C. 616 at p. 619 : 4 Shome L.R. 187 : 6 Ind. Jur. 90 : 9 C.L.R. 257 : 3 Ind. Dec. (N.S.)945], but in any event such an amendment would effect nothing. The plaintiff in such a case as this cannot recover on the bond at all not even if he sues upon it in its original state: Master v. Miller (1791) 1 Sm. L.C.(11th Ed.) 767 : 4 T.R. 320 : 2 R.R. 399 : 100 E.R. 1042 is undoubted law in India [cf. Gour Chandra Das v. Prosanna Kumar Chandra 33 C. 812 : 3 C.L.J. 203 : 10 C.W.N.783].
8. This is sufficient to show that the decision complained of, cannot stand: in the present case it is not open to the plaintiff to recover apart from the bond. A bill of exchange or promissory note is frequently given as conditional payment of or as security for the price of goods sold or some other debt. If the instrument is afterwards altered it cannot be sued on (as between the original parties)but the contract for the sale of goods (e.g.) can in such cases be enforced against the acceptor or maker who purchased the goods. As between an indorsee and indorset the case is different [Alderson v. Langdale (1832) 3 B.and Ad. 650 : 1 L.J.(N.S.) K.B. 273 : 37 R.R. 513 : 110 E.R. 241, Negotiable Instruments Act, 1881, Section 87] because the indorser’s remedy against prior parties has been prejudiced: this consideration does not affect a maker or acceptor who may, therefore, maintain an action on the original debt, [cf. Atkinson v. Hawdon (1835) 2 A. and E. 628 : 4 N.and M.409 : 4 L.J. (N.S.) K.B. 85 : 41 R.R. 493 : 111 E.R. 242], so too a hathchitta is frequently given as an acknowledgment of a pre-existing date. Subject to any question of merger the same position may arise in the case of a bond. But an independent cause of action must be shown if the doctrine of Master v. Miller (1791) 1 Sm. L.C.(11th Ed.) 767 : 4 T.R. 320 : 2 R.R. 399 : 100 E.R. 1042 is not to take effect.
9. Verbal negotiations leading up to an express contract in writing cannot be set up as an independent contract and are not even admissible in evidence (Evi-dence Act, Section 91). Moreover, where there is an express promise an implied promise will not be inferred. In the present case I see no materials upon which the plaintiff can make out an independent contract. Nor is it necessary to consider whether an honest plaintiff whose bond had, while in his custody, been altered could on a case properly alleged and proved recover back the actual money lent as money had and received to his use. I think this Rule should be made absolute and the suit dismissed with costs.
