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Bombay High Court
Jacob And Co. vs A.P. Vicumsey on 19 July, 1926
Equivalent citations: (1927) 29 BOMLR 432
Author: Kemp
Bench: Kemp


Kemp, J.

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.” 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 defendant Kallianji Vardhman appears in person and he admits that Rs. 1,500 were due but he says on certain rice transactions, and pleads payments, so that he admits that there was a debt but pleads discharge of it.

2. The first point for consideration is whether the suit is based on the document Exhibit 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. Rajmal (1899) I.L.R. 24 Bom. 360, s.c. 2 Bom. L.R. 25 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, ill. (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. A transaction of this sort may be one of three kinds. Either the contract may be considered as contained wholly in the promissory note or bill of exchange as in ill. (b) to Section 91 of the Indian Evidence Act, in which case I apprehend that if the plaintiff could not sue on the promissory note he could not sue at all; or, secondly, as in Krishnaji v. Rajmal, the promissory note may be regarded as a conditional payment of the amount of the loan in which case, of course, if the promissory note is insufficiently stamped, it is only a worthless piece of paper and the plaintiff can sue on the loan ; or, thirdly, the promissory note may be passed as security for the loan in which case there is no necessity for the plaintiff to sue on the promissory note at all and whether it is properly stamped or not he can bring a suit on the loan. Judges are supposed to be able to discriminate on the evidence which of these three kinds of cases has arisen and the general tendency appears to be that if the defendant admits that the debt was due by him, the Court will find some way of defeating the provisions of Section 91, ill. (b), and holding that the suit can be maintained as a suit on the loan for which the promissory note was given as a conditional payment. The plaint in this case is settled by learned counsel who evidently had this point in view. It does not appear to commit itself to a suit on the writing but to treat the suit as on a loan evidenced by a writing which required payment three months after sight and the plaint goes on to narrate that the document was presented for sight and payment not received. The only evidence in the case on this point is the evidence of the plaintiff, for the defendant Kallianji admits the obligation although he says he has discharged it. Under the circumstances I hold the case comes within the second category and the plaintiff can sue on it.

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