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1933 DIGILAW 245 (ALL)

Baqar Ali v. Suraj Lal

1933-08-02

BENNET, LAL GOPAL MUKERJI

body1933
JUDGMENT Mukerji and Bennet, JJ. - This is a second appeal on behalf of the Defendant against whom the lower appellate Court has granted a decree for payment of money. The Plaintiff in his plaint set out that Defendant had borrowed Rs. 1,300 on 16th September, 1927, promising to pay the same with interest at 9 per cent, per annum, and executed the promissory note sued on with a receipt. The objection was taken that the promissory note was insufficiently stamped and therefore inadmissible in evidence, and this objection is correct, and the lower Courts did not admit the promissory note into evidence. The question which has been raised in appeal is whether in the absence of the promissory note the Plaintiff is entitled to a decree. Section 91 of the Evidence Act lays down that when the terms of a contract etc. have been reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, except the document itself or secondary evidence where admissible. In the present case it was argued that as the contract itself is contained in the promissory note, and as the promissory note and secondary evidence of it are not admissible, therefore the case for the Plaintiff cannot be proved. But the circumstances are as follows: There was an earlier promissory-note of 16th October, 1924, for Rs. 2,300 (Ex. 1) and there was a receipt (Ex. 2) of the same date by the Defendant for this amount. It is found by the lower appellate Court that this amount had been advanced on that date. No further cash vas advanced on 16th September, 1927. The lower appellate Court has held that the Plaintiff and his witness proved or at on 16th September, 1927, the old debt was renewed to the extent of Rs. 1,300. This renewal of the old debt of 1924 within the period of limitation is proved not only by the oral evidence of the Plaintiff and his witness but also by an endorsement made and signed by the Defendant on the 16th September, 1927, stating in lieu of he amount of this promissory note another promissory note was executed on 16th September, 1927. Baqar A.H. 2. This was admitted by Baqar Ali as written by him, and he admitted that there was the renewal of the former promissory note. Baqar A.H. 2. This was admitted by Baqar Ali as written by him, and he admitted that there was the renewal of the former promissory note. There is also a receipt to the same effect dated 16th September, 1927, duly stamped and admissible in evidence. We consider that this admission by the Defendant of his liability under the promissory note of 1924 is an acknowledgment of liability which comes within the terms of Section 19, Sub-section (1) of the Indian Limitation Act, and accordingly this would extend the liability of the Defendant on the former promissory note of 1924. The suit therefore is brought within limitation for the promissory note of 1924. Under these circumstances we consider that the lower Court was correct in granting the decree which has been granted. 3. As regards interest it is stated by the Learned Counsel for the Appellant that as the contract of 1927 cannot be proved by production of the promissory note, there is therefore no liability to pay interest. In the earlier promissory note of 1924 interest was fixed at 18 per cent, per annum. The decree hi s been granted for interest at 6 per cent, per annum compoundable six monthly, This is less than the amount which might have been claimed under the earlier promissory note of 1924. We consider therefore that the lower appellate Court was justified in decreeing interest at this amount. Accordingly we dismiss this second appeal with costs.