JUDGMENT Derbyshire, C.J. - This is an appeal from a judgment of the Officiating Sub-Judge of the 3rd Court, Mymensingh, dated 29th May, 1930, in favour of the Defendants. The Plaintiffs are a banking company which has its head office at Mymensingh and a branch at Sarisabari. The Defendants are dealers in jute and other commodities, carrying on business at Sarisabari. The Defendants' business appears to be managed by Jatindra Narayan Saha who is one of the partners of the concern, and a son of the founder Prasanna Kumar Saha. The Plaintiffs' business premises at Sarisabari adjoin those of the Defendants, and there have been from time to time business dealings between the parties in Which the Plaintiffs have lent money to the Defendants. This suit arises out of an alleged transaction whereby the Plaintiffs are said to have lent Rs. 7,000 to the Defendants on certain terms which will appear below. The Defendants deny that the loan alleged was ever made. Para. 2 of the plaint reads as follows :-- On September, 7th 1925, last, the Defendant No. 8 (Jatindra) on account of the business of the said Prasanna Kumar Saha at Sarisabari, having signed his father's name Bakalam on behalf of the said P. K. S. borrowed the sum of Rs. 7,000 from the Plaintiffs' branch office at Sarisabari on executing the hand-note filed herewith, and agreed and promised that the sum together with interest at the rate of Rs. 1-12 as per cent. per mensum, would be paid on demand. 2. The Defendants say the correct translation from the Bengali of the original hand-note is not "on executing" but "by means of." The plaint then goes on to set out the principal and interest claimed. The written statement filed on behalf of the Defendants in para. 1 states that the hand-note alleged only bears a stamp of value 1 anna whereas it should bear a stamp of value 4 annas, and that in consequence the Plaintiffs' suit is not maintainable on the basis of the said hand-note. Para. 2 of the defence denies the borrowing of the money and the giving of any promise to pay either that money or any interest on it. Para. 3 admits that Jatindra is the manager of and has carried on the business of the Defendants, but denies that any money is owing by the Defendants to the Plaintiffs. Para. Para. 2 of the defence denies the borrowing of the money and the giving of any promise to pay either that money or any interest on it. Para. 3 admits that Jatindra is the manager of and has carried on the business of the Defendants, but denies that any money is owing by the Defendants to the Plaintiffs. Para. 4 says the claim is collusive and fraudulent. Paras. 5 and 6 give particulars of the alleged fraud and collusion. 3. It is alleged that Subodh Roy, the Plaintiffs' manager at Sarisabari, misappropriated monies of the Bank, and that to make good the losses the Plaintiffs and the said Subodh have conspired together and made this claim, that the Plaintiffs had taken out a warrant for the arrest of Subodh, but had not proceeded to execute it, because it would damage their business reputation, and also because it would deprive them of Subodh's help in making this claim; further, that the Plaintiffs have been financing Subodh in a business, presumably in order to pay him for his help in making this claim. Para. 7 states that the Defendants have been doing business with the Plaintiffs for many years, borrowing money and giving hand-notes for the same and that the Plaintiffs have not returned some of the notes. Para. 8 gives some description of these hand-notes, and again denies the Plaintiffs' claim. Para. 9 refers to a schedule of account which the Defendants set out as annexed to their defence and say shows the true state of account between the parties. Para. 10 refers again to the schedule of account and states that it shows that on 26th Kartick, 1332, B. S. (November 11th, 1925) the Defendants paid to Subodh Roy Rs. 7,500 which paid off their indebtedness to the Plaintiffs, and that on that date Subodh gave a receipt to the Defendants, acknowledging that all indebtedness had been paid off and that the hand-notes in respect of the debts then wiped out were at the Plaintiffs' head-office and could not be returned. Para. 11 repeats the allegations of fraud and collusion against the Plaintiffs. 4. Para. 11 repeats the allegations of fraud and collusion against the Plaintiffs. 4. On April 4th, 1929, Plaintiffs filed a petition, asking the leave of the Court to amend their petition in the following respects :-- (1) that at the beginning of the plaint, in place of the heading "suit on the basis of hand-note" should be substituted: "suit on the basis of loan account on account of Dadan." (2) that in para. 2 of the plaint the words "by means of the hand-note filed herewith" should be struck out, and that the following words should be added at the end of the para., viz.:--"and signed the hand-note and memo, filed along with the plaint as vouchers." (3) that in para. 5 of the plaint, in Col. 1 of the remarks, the words "of the execution of the hand-note in suit" should be struck out, and the words "of the loan stated in the plaint" should be inserted. (4) that in the prayer, the sum of Rs. 9,915-3 be substituted for the sum of Rs. 11,405-15-6, by reason of the bona fide omission on the Plaintiffs' part to give credit for Rs. 1,490-12-6 in the account filed with the plaint. 5. The Judge rejected this petition on the ground stated in p. 3 of the paper-book that "attempt is being made to change the whole character of the suit." 6. A similar petition was filed again by the Plaintiff on December 9th, 1929, and this too was rejected on the same ground (pp. 4 and 5 of the paper-book). At the trial in the Court below, the Judge considered the verbal and the documentary evidence, and said that if the suit had been otherwise maintainable, he would have held that the Defendants really borrowed Rs. 7,000 from the Plaintiffs on September 7th, 1925. The Judge held, however, that the contract made between the parties on September 7th, 1925, was merged into the hand-note of the same date, and that no other evidence of the contract, either verbal or from the voucher of the same date, could be given. He further held that the hand-note itself was not properly stamped, and for that reason was not admissible in evidence. The suit, therefore, failed. The matter thereupon came before us on appeal, and was strenuously argued for some days. He further held that the hand-note itself was not properly stamped, and for that reason was not admissible in evidence. The suit, therefore, failed. The matter thereupon came before us on appeal, and was strenuously argued for some days. After considering all the evidence I have come to the conclusion that the Plaintiffs' story of the matter is the correct one. 7. The Plaintiffs' case is as follows:--On September, 7th, 1925, the Defendants borrowed from the Plaintiffs Rs. 7,000. At the time of borrowing, the Defendants, by the said Jatindra, signed a promissory note in respect of the said sum, in the following terms:-- I, Prosanna Kumar Saha, son of Banchharam Saha, deceased, at present residing at Mokam Sarisabari P.S. Sarisabari, District Mymensingh, take a loan of Rs. 7,000 seven thousand only to-day from the Tabil (funds) of the aforesaid Bank, On demand I shall pay the Bank or the bearer of this hand-note under the direction of the Bank thid sum together with interest at Rs. 1-12 as. per cent. per mensem. Finis. Dated 7th September, year--1925. (Signed) Prasonna Kumar Saha, in the pen of Jatindra Narayan Saha. (The signature of Jatindra was in Bengali Script and over a one anna stamp.) 8. At the same time a bank clerk made out a document (hereafter referred to as the voucher) in the following terms :-- (Exhibit 3). The East Bengal Commercial Bank, Ltd. Paid Sept. 7th, 1925. S. B., Sarisabari, Rs. 7,000/- Debit Loan a/c Prasanna Kumar Saha advance on Loan Bond. S. 19/25 at 1-12 p. c.p. m. Rs. seven thousand only. Sarisabari. Pay S. Roy, Entered (illegible) Manager. 7.9.25. 9. On the back of the above voucher was the following writing in Bengali Prasanna Kumar Saha in the pen of Jatindra Narayan Saha. 10. The Defendant Jatindra denies receiving this loan and says the signature purporting to be his on the back of the voucher is not his. On the other side Subodh swears that Jatindra borrowed the money and wrote the signature on the back of the voucher. So does Sarat Ch. Pandit, a poddar in the employ of the Bank, who says he was there at the time and saw Jatindra borrow the money and sign the indorsement. The Plaintiffs' books record the making of the loan, and the book entries appear in order. The Defendants' books do not show the loan. So does Sarat Ch. Pandit, a poddar in the employ of the Bank, who says he was there at the time and saw Jatindra borrow the money and sign the indorsement. The Plaintiffs' books record the making of the loan, and the book entries appear in order. The Defendants' books do not show the loan. Under these circumstances one has to look at the signature. To my eyes the signature is similar to other signatures, admittedly Jatindra's, on the backs of vouchers made when Jatindra previously borrowed money from, the Plaintiffs My brother Mr. Justice Mukerji, who reads and writes Bengali script, is of the opinion that the signature on the back of the voucher of September 7th is Jatindra's. The Defendants, although they allege that the signature is not genuine, have not called any expert witness to speak to the non-genuineness of it. I have come to the conclusion that the signature on the back of the voucher of September 7th is Jatindra's, and that therefore the voucher is genuine and made in respect of a loan by the Plaintiffs to the Defendants on that date. As regards the Defendants' plea in para. 10 of the Defence, that all their indebtedness was wiped out by their payment of Rs. 7,500 on November 11th, 1925, it is obvious that if Rs. 7,000 was lent to them on September 7th, 1925, this cannot be so. I wish, however, to say something about the receipt for Rs. 7,500 which the Defendants produce in respect of their contention. [His Lordship proceeded to discuss the evidence on this part of the case and reached the conclusion that the receipt was a genuine one, that it was signed by Subodh, the manager of the Plaintiffs, but that it was a dishonest document, granted by Subodh in fraud of his employers and that the sum of Rs. 7,500 had been paid on account of the general indebtedness of the Defendants to the Plaintiffs. His Lordship then continued as follows:] 11. The next question is as to what legal consequences follow from the above facts. In the first place it is quite clear that the so-called hand-note is a promissory note and, as such, it ought to be stamped with a 4 anna stamp. It is only stamped with a one anna stamp and is therefore inadmissible in evidence. See the Stamp Act, 1899, sec. 33. In the first place it is quite clear that the so-called hand-note is a promissory note and, as such, it ought to be stamped with a 4 anna stamp. It is only stamped with a one anna stamp and is therefore inadmissible in evidence. See the Stamp Act, 1899, sec. 33. The question then arises ; can the contract of loan be proved by other evidence? The English law on the matter is summarised in Halsbury's Laws of England, 2nd Ed., Vol. 7, page 244, para. 334:--"If a document is given in payment which purports to be a bill, note, or cheque, but turns out to be a forgery or to be invalid for want of stamp or otherwise, the creditor is entitled to enforce payment of the debt as if no such instrument had been taken by him." Some difficulty has arisen because of a decision of a former Chief Justice of this Court--Sir Richard Garth--in the case of Sheik Akbar v. Sheik Khan I. L. R. 7 Cal. 256 (1881). The latter case was discussed and distinguished by Sir Comer Petheram, C.J., in Pramatha Nath Sandal v. Dwarka Nath Dey I. L. R. 23 Cal. 851 (1896) which was a case where a promissory note had been given for money lent, but the note was insufficiently stamped and therefore inadmissible in evidence. There the Plaintiff was held to have a cause of action independently of the promissory note. In a case in the Allahabad Court--Ram Sarup v. Jasoda Kunwar I. L. R. 84 All. 161, 163 (1911) --that Court declined to follow Sheik Akbar's case I. L. R. 7 Cal. 256 (1881), but followed Pramatha's case I. L. R. 23 Cal. 851 (1896). In Krishnaji Narayan Parkhi v. Rajmal Manikchand Marwari I. L. R. 24 Bom. 360 (1899), Sir Lawrence Jenkins, C.J. (afterwards C.J. of this Court) referred to Sheik Akbar's case I. L. R. 7 Cal. 256 (1881). 256 (1881), but followed Pramatha's case I. L. R. 23 Cal. 851 (1896). In Krishnaji Narayan Parkhi v. Rajmal Manikchand Marwari I. L. R. 24 Bom. 360 (1899), Sir Lawrence Jenkins, C.J. (afterwards C.J. of this Court) referred to Sheik Akbar's case I. L. R. 7 Cal. 256 (1881). "It is apparent from this (the report) that the actual ratio decidendi was that there was no loan independently of the note, so that it does not govern this case, if, as I think, there was a loan independently of the note." In a recent case in this Court--Sheik Abdul Rabbani v. Shyam Lal Thapa 84 C. W. N. 554 (1929), Mukerji, J., followed the line of decision just quoted in preference to Sheik Akbar's case I. L. R. 7 Cal. 256 (1881). It must, therefore, be taken that the decision in Sheik Akbar's case I. L. R. 7 Cal. 256 (1881) was peculiar to the facts of that particular case. In this case, was there admissible evdienee of a loan independently of the note? In my view there was. 12. At the time the loan was made, two documents came into existence,--the promissory note and the voucher. The vouches was a document that came into existence for the purpose of providing an account of the transaction for the head-office. On the face of it are contained all the terms of the loan. Further it is a direction to the head-office to debit the borrower's loan account with Rs. 7,000. The Defendants (through Jatindra) signed the voucher on its back. That indorsement meant something, otherwise the lender would not have asked for it, and the borrower would not have made it. It meant, in my view, that the borrower agreed that the transaction was as recorded on the face of it and that the borrower recognised that it was a loan. A loan has to be repaid. In my view the indorsed voucher meant that the Defendants promised to repay the sum borrowed with the interest mentioned on it. That voucher was intended to be kept by the Bank at its head-office as a record of the transaction. The promissory note was a negotiable instrument which by its nature could, and very easily might, pass into other hands. That voucher was intended to be kept by the Bank at its head-office as a record of the transaction. The promissory note was a negotiable instrument which by its nature could, and very easily might, pass into other hands. The voucher was intended to be the record of the transaction, the note was a negotiable instrument given as a collateral security for the loan. There is, therefore, evidence of the loan independent of the hand-note, and as this evidence is admissible upon the authority of the line of cases cited, it seems to me conclusive from the evidence that the Defendants had the loan of Rs. 7,000. As the pleadings stand, the Plaintiffs cannot recover the Rs. 7,000 or interest thereon, because the claim in the plaint is based not on the loan, but on the promissory note given collaterally to the loan, and the promissory note is not admissible in evidence. Ought the Plaintiffs to be allowed to amend their pleadings so as to be able to claim on the loan? The amendment was rejected by the Judge below twice on the ground that it changed the whole character of the suit. It has to be remembered that the loan, promissory note, and the voucher were made on September 7th, 1925. The suit was started, i.e., the plaint filed on September 4th, 1928--within 3 days of the claim being time-barred. The first application to amend was made on April 4th, 1929, at a time when a fresh suit would have been time-barred. In strict law the suit on the hand-note arises out of the promise to pay on the note, whilst a suit on the loan arises out of a promise to pay made at the time of the loan but made independently of the promissory note. In the plaint the pleader seems to rely on the hand-note to establish his claim. If he had followed the rules of pleading, and set out the whole of the material facts, he could have prosecuted both claims without difficulty. The Plaintiffs went to law to recover the money due under the loan. It is inconceivable that the lawyer who drew the plaint had instructions from the Bank to sue on the hand-note alone, and ignore the loan transaction itself. But for some reason the pleader did this, and it seems inequitable that his clients, the Plaintiffs, should be penalised for it. It is inconceivable that the lawyer who drew the plaint had instructions from the Bank to sue on the hand-note alone, and ignore the loan transaction itself. But for some reason the pleader did this, and it seems inequitable that his clients, the Plaintiffs, should be penalised for it. Order 17 Obviously A slip for Or. VI, r. 17.--Reporter of the First Schedule of the CPC is as follows :-- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. 13. The difficulty lies in applying this rule where, as here, the Defendant claims a time-bar under the statute of limitations. In Weldon v. Neal L. R. 19 Q. B. D. 394 (1880), Lord Esher said: "We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice the rights of the Opposite Party as existing at the date of such amendments. Under very peculiar circumstances the Court might perhaps have power to allow such an amendment, but certainly as a general rule it will not do so." In Charan Das v. Amir Khan L. R. 47 I. A. 255 : s. c. 26 C. W. N. 289 (1920), in the Privy Council, Lord Buckmaster said: "Though the power of a Court to amend the plaint should not as a rule be exercised where its effect is to take away from a Defendant a legal right which has accrued to him by lapse of time, yet there are cases, see for example Mohammad Tahir Ali v. Rutta Koer 11 M. I. A. 468 at p. 485 (1867), where such considerations are out-weighed by the special circumstances of the case." In Charan Das's case L. R. 47 I. A. 255 : s. c. 25 C. W. N. 289 (1920), the trial Judge and the first Appellate Court refused to allow the plaint to be amended by claiming possession on preemption, since the time had expired for bringing a suit to enforce that right. Upon a second appeal the Court allowed the amendment to be made, and the Privy Council confirmed this. Upon a second appeal the Court allowed the amendment to be made, and the Privy Council confirmed this. Lord Buckmaster said: "All that happened was that the Plaintiffs, through some blundering, attempted to assert rights that they undoubtedly possessed under the statute in a form which the statute did not permit." In this present case it seems to me that the claim on the loan itself was not raised, through some blundering on a lawyer's part, and thereby the Plaintiffs' clear rights were jeopardised. The Defendants will not be, and never were, prejudiced in their defence (which was a total denial of the whole transaction). I am of the opinion, therefore, that having regard to all the circumstances of the case, the amendment originally asked for should be allowed, and the amendment must be made within two days. That amendment being allowed, the Plaintiffs become entitled to judgment for the Rs. 7,000 with interest at the rate Of Rs. 1-12 as. per mensem from the date of the loan. 14. The parties have agreed to figures so that there will be judgment for the Plaintiffs for Rs.7,626-7-1 and interim interest at 6 per cent. from the 4th September, 1928, down to the date of realisation. The result is that the appeal is allowed. The cross-objection is dismissed. The Plaintiffs Appellants will get full costs of this appeal and 3/10th of their costs in the lower Court. There will be no order as to costs in the cross-objection. Mukerji, J. I agree.