Decided on June 18,1971



- (1.) Defendant No. 5, representing the D-1 firm, as concurrently found by the Courts below, took a handloan of Rs. 4,000.00 from the plaintiff on 27-3-1962 promising to repay it within two days. He could not keep the promise and executed on 29-3-1962 Ex. A-4 in the form of a letter promising to pay the amount with interest at 9 %. This has all the trappings of a promissory note but was left unstamped. On 6-4-1962 payment of Rs. 2,500.00 was made towards the debt and the same was endorsed on the letter. The endorsement is Ex. A-5. The defendants, however, did not pay the amount when demanded and the plaintiff consequently filed the suit on 6-4-1965. The suit is to recover the debt incurred on 27-3-1962 and is not rested on Ex. A-4. Though the defendants raised very many pleas like that the signature on Ex. A-4 was not that of D-5 etc., the Courts below rejected all those defences and passed a decree against the D-1 firm and its partners, defendants 2 and 4 to 6. The third defendant was exonerated as he was found to be not a partner. The said defendants have, therefore, preferred the second appeal.
(2.) Bound by the concurrent findings of fact, Sri Subrahmanyam, the learned counsel for the appellants, canvassed two questions of law before me. One is that the Court below found that Ex. A-4 is in admissible in evidence since it is unstamped. Then he bar against oral and other documentary evidence of the terms of the contract, which had been reduced to the form of a document, comes into play. Since the document itself is excluded and there is no permissible secondary evidence of its contents, the plaintiffs claim must fail for want of proof of the debt. Secondly, the claim is barred by limitation, sine the suit was filed more than three years after the debt was incurred and the endorsement. Ex. A-5 cannot be looked into, because it is part of an unstamped document, is itself unstamped.
(3.) Taking these points in their order, the objection based on Section 91 of the Evidence Act is , in my opinion misconceived. This contention forgets the fact that the suit was not on the foot of the letter. Ex. A-a4 but was filed to recover the debt taken from the plaintiff not on 29-3-1962 but on 27-3-1962. The plaint clearly mentions all these facts. It clearly states in paragraph 4 that ---- "In case the Court holds that the said letter, is not valid, the final cause of action at first arose on 27-3-1962 when money was given as hand-loan. Therefore, the plaintiff is relying on the loan dated 27-3-1962. The defendants had executed and delivered the suit promote letter in favour of the plaintiff as Security for the loan dated 27-3-62. In paragraph 3 showing the cause of actin, it is once again stated that it arose on 27-3-1962. Thus, the suit is one to recover the debt and is not on the foot of the letter Ex. A-4. As is claimed in the plaint, the letter was obviously taken as a collateral security. The lending and borrowing was not simultaneous with the execution of the letter. In fact, Ex. A-4 itself states that the pucca date for the borrowing is 27-3-1962. It cannot, therefore, be doubted that the actual borrowing was on 27-3-1962 and the letter was taken two days latter as a collateral security, since the defendants had failed to repay the debt within two days as they originally promised. Further, the letter, Ex. A-4 does not appear to contain all the terms of the contract between the parties. It says that the amount borrowed in cash that day was Rs. 4,000.00. In matter of fact however, the borrowing was two days earlier. It also does not disclose the fact that the borrowers had promised to return the money within two days but failed to do so. Furthermore, the pucca date was given as 27-3-1962 in the promissory note itself. From all this, it is manifest that Ex. A-4 does not contain all the terms of the contract between the parties. When it does not so contain, Section 91 of the Evidence Act has no application and the plaintiff is not precluded to prove the terms of the contract by parole and other evidence. When Ex. A-4 does not embody all the terms of the contract, the true nature of the transaction can be proved by other evidence. Where an instrument has been given as a collateral security, a suit on the debt itself will lie. I am fully supported in this view by the Full Bench decisions in Perusal v. Kamakshi, AIR 1938 Mad 785. The plaintiff in ;this case is perfectly entitled to sue on the original debt and adduce evidence in support thereof. The first point, put forward by the learned counsel for the appellants, therefore, fails.;

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