(1.) The plaintiff in the suit, who is the petitioner here, on January 3, 1929, sold 10 kalams of paddy at Rs. 3 a kalam making a total of Rs. 30, to the defendants, the respondents here, and on the same date took from the latter a hand letter which reads as follows: January 3, 1929. The hand letter executed in favour of Ramaswami Pillai... by Murugayya Padayachi and Kailya Padayachi... We have taken, from you on credit this day 10 kalams of kuruvai paddy at Rs. 3 a kalam for Rs. 30 and we have executed this hand letter promising to pay the sum of Rupess thirty with interest thereon at three pies per rupee per mensem to you or to your order.
(2.) This document was unstamped; and being clearly a promissory note--and this is not contested by the petitioner--it was not admissible in evidence because it was un stamped, The District Munsif having rejected the promissory note as evidence declined to give a decree to the petitioner on the original debt holding that the hand letter was not given in respect of an antecedent debt but was a contemporaneous document executed at the same time as the transaction relating to the sale of the paddy. This petition was directed to be posted before a Bench of three Judges in view of the fact that it was suggested that in this High Court there has been a conflict of opinion on the question as to whether a plaintiff is entitled to fall back upon the original debt where, through insufficiency of stamp or otherwise, a document, which is executed at the same time as the debt sued upon is incurred, is inadmissible in evidence. Some recent decisions of single Judges of this High Court are relied upon in support of the contention that previous Bench decisions of this High Court, viz. Pothi Reddi V/s. Velayudha Sivan 10 M 94, which followed Sheik Akbar V/s. Sheik Khan 7 C 256 : 8 C L R 528, Muthu Sastrigal V/s. Viswanatha Pandara Sannadhi 38 M 660 : 21 Ind. Cas. 864 : 14 M L T 520 : (1914) M W N 58 : 26 M L J 19 : A I R 1914 Mad. 657 and the recent case of Chockalingam Chettiar V/s. Palaniappa Chettiar , are no longer good law and that on the contrary the views recently expressed by Stone, J., in Murugappa Chetty V/s. Nachiappa Chetty 67 M L J 30 : 155 Ind. Cas. 164 : 40 LW 167 : A I R 1931 Mal. 503 : 7 R M 559, and by Venkatasubba Rao, J., in Chinnayya Naidu, V/s. Srinivasa Naidu and by Wallace, J., in Gapala Padayachi V/s. Rajagopala Naidu A I R 1928 Mad. 1118 : 98 Ind. Cas. 75 : (1923) M W X 757 correctly state the law. In Chinnayya Naidu, V/s. Srinivasa Naidu , Venkatasubba Rao, J., expresses the opinion that, so far from the law being settled in this Presidency by the cases relied upon by the respondents, the preponderance of authority is in favour of the view that although the execution of the note is simultaneous with the loan, the lender can fall back upon the original consideration. Coutts- Trotter, J., in Chhokalingam Chetti V/s. Annamilai Chetti 34 Ind. Cas. 417 31 Ind. Cas. 417 AIR 1917 Mad. 480, says: The giving of the security does not extinguish but merely suspends the cause of action on the original debt, which revives if the security be not discharged at maturity. and treats this proposition as fundamenal and rudimentary . K. Srinivasa Ayyangar, J. in the same case says: If a bill or a note is given for a contemporaneous debt, there is a difference of opinion, but the better opinion is that even in such a case the bill merely suspends the remedy and does not operate as a discharge.
(3.) Whilst I do not agree with Venkatasubba Rao, J., that the preponderance of authority in this Presidency is in favour of that view, I agree that there is certainly a conflict of opinion. In Chidambaram, Chettiar V/s. Ayyasami Thavan 40 M 585 : 36 Ind. Cas. 741 : 31 M L J 401 : (1916) 2 M W N 210 : 4 L W 261 : 20 M L T 350, a decision of Oldfield and Krishnan, JJ., it appears from the facts that the loan and the promissory note were contemporaneous and the question, was whete, if the promissory note was illegal and void, the lender could be given a decree apart from the note. On page 587 page of 40 M.--[Ed.] of Chidambaram Chettiar v. Ayyasami Chettiar 40 M 585 : 36 Ind. Cas. 741 : 31 M L J 401 : (1916) 2 M W N 210 : 4 L W 261 : 20 M L T 350, Oldfield, J., says: It is not possible to answer this question without further knowledge of the facts. For it is impossible on the information given by the District Munsif to decide whether there was any obligation apart from the note, the fact that the loan and the note were contemporaneous not being decisive on the point.