Decided on November 09,1970



- (1.) THIS is an appeal by the plaintiff whose suit has been dismissed by the learned subordinate Judge, Pudukottai, on a preliminary point that the suit is not maintainable. The allegations in the plaint are, briefly, that the plaintiff's father was running a money-lending business at Colombo under the name and style of A. S. (Original in Tamil omitted-Ed.) Moneylending Firm, that the defendant was an agent in that firm and was also having dealings of his own and was carrying on his business. On 16-6-1961, when the accounts of the defendant were taken, the sum owed by the defendant to the plaintiff's father's firm was settled at Rs. 15,000. The defendant agreed to pay the said debt after the expiry of two years, and, in view of the close relationship between the parties, a low rate of interest was fixed, namely, two annas per Rs. 100 per month. to evidence the agreement he executed what the plaintiff styles as a 'voucher'. After the death of the plaintiff's father, the plaintiff became entitled to collect the debt and he, therefore, filed the suit on the original cause of action and consideration.
(2.) THE defendant admits that he supervised the money-lending firm at Colombo carried on under the name and style of A. S. Money-lending firm till 1957, but he states that he never had any dealings with the said firm. The plaintiff's father was the elder sister's husband of the defendant and the defendant was under the control of the plaintiff's father. The plaintiff's father was not able to send money from Colombo to India. He had given instructions to the defendant to sent money from Ceylon in black market stealthily. When the defendant returned to India, the plaintiff's father was under the impression that the defendant could have misappropriated a portion of the black money, and, therefore, made him execute the document mentioned in the plaint. He contended further that the document was a promissory note not sufficiently stamped and therefore, a suit could not lie on the basis of the promissory note.
(3.) ONE of the issues framed was Issue No. 3 of the following effect: "is the suit as framed on original cause of action and transaction not maintainable?" it is stated in the judgment of the learned Subordinate Judge that by consent of parties that issue was taken up for preliminary discussion. On Issue No. 3 as a preliminary issue, the learned Judge held that the document embodied the terms of the contract between the parties, that it was a promissory note insufficiently stamped, that it could not be admitted at all and that it was not open to the plaintiff to fall back on the original cause of action. He purported to follow the decision of the Full Bench in Perumal Chettiar v. Kamakshiammal, ILR (1938) Mad 933 = (AIR 1938 Mad 785 (FB) ). In the result, he dismissed the suit. The plaintiff has preferred this appeal.;

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