Narayana Panicker v. Lona Varkey — 1950 DIGILAW 73 (KER)

Judgment :- 1. The petitioner is the plaintiff in O.S. 280 of 1122 on the file of the District Munsiff of Ernakulam. That suit is one to enforce a simple money claim against the defendant -respondent to the tune of Rs. 108 4 as. The suit having been dismissed the plaintiff filed appeal No. 38 of 1124 on the file of the District Judge of Anjikaimal. The appeal also was dismissed. Against the decree in the said appeal this revision petition is filed as no second appeal would lie under S. 86 (2) of the Cochin Code of Civil Procedure, the suit being of a small cause nature and the value being less than Rs. 200. 2. The suit was filed on 29.5.1122 alleging that the date for payment of the amount claimed was 29-5-1119. That date of repayment is stated in the plaint to be contained in a letter alleged to have been given by the defendant to the plaintiff and mentioned in para.1 of the plaint. The defendant denied the letter as alleged in the plaint but stated that he had given a letter to the plaintiff undertaking repayment of a certain sum on the 12th of Dhanu 1119. He also contended that the letter which is the basis of the suit is inadmissible in evidence and cannot form the basis of the action. He further contended that the claim is barred by limitation and that the date of repayment shown in the letter relied on by the plaintiff having been tampered with, the document is unenforceable having become void for material alteration. The plaint stated that the transaction was on or about the 3rd of Dhanu 1119. Upon these pleadings issues were raised. The second issue was "is the document admissible in evidence; is the plaintiff entitled to any relief on the basis of that document". 3. On the application of the defendant issue No. 2 was first taken up for disposal. The Munsiff found that the document is not admissible in evidence as it is a promissory note which being unstamped is admissible. Against that finding the plaintiff filed Civil Revision Petition No. 107 of 1123 in the Cochin High Court, which also ended adversely to the plaintiff; the High Court having taken the same view as the District Munsiff - Narayana Panicker v. Varki 39 Cochin Law Reports 606. Against that finding the plaintiff filed Civil Revision Petition No. 107 of 1123 in the Cochin High Court, which also ended adversely to the plaintiff; the High Court having taken the same view as the District Munsiff - Narayana Panicker v. Varki 39 Cochin Law Reports 606. Thereafter the defendant moved by Miscellaneous Petition No. 3994 of 1123 on the file of the Munsiff, for the dismissal of the suit, the sole basis thereof being the letter which had been found to be inadmissible. The Munsiff on hearing arguments and considering the question came to the conclusion that the only basis of the suit was the document which had been found to be inadmissible and that further trial of the suit was unnecessary. On this view the Munsiff dismissed the suit. Against that decree the plaintiff appealed in A.S. 38 of 1124 in the Anjikaimal District Court. The appellate court also came to the same conclusion and confirmed the Munsiff 's decree. This revision is against the decree in the said appeal. 4. The points that arise for consideration in this revision are (1) whether the document in question is inadmissible in evidence and (2) whether the suit is based on that document alone or also on the original consideration. 5. Incidentally a question as to whether it is competent for the petitioner to canvass the correctness of the decision on issue No. 2 already come to, was raised by the respondent but that point was ultimately not pressed by him. 6. Point No. 1. The document in question may be translated thus, omitting the portions relating to the residences of the parties. "Letter written by Lonan Varki (Defendant) to Gopalan Narayana Panicker (Plaintiff). I acknowledge to have received Rs. 100 of which you caused payment to me by executing a document to Vyttila Aided School Teachers' Co-operative Society No. 254. This amount I promise to repay on 29.5.1119. Signed Varki". This translation was accepted as correct by the parties at the hearing. "Letter written by Lonan Varki (Defendant) to Gopalan Narayana Panicker (Plaintiff). I acknowledge to have received Rs. 100 of which you caused payment to me by executing a document to Vyttila Aided School Teachers' Co-operative Society No. 254. This amount I promise to repay on 29.5.1119. Signed Varki". This translation was accepted as correct by the parties at the hearing. The question is a simple one as the document is obviously a promissory note coming within the definition thereof contained in the Cochin Stamp Act VI of 1083 S. 2 (21) which reads thus: "Promissory note" means an instrument in writing (not being a bank note or a currency note) containing an unconditional undertaking signed by the maker to pay a sum of money only to, or to the order of, a certain person or to the bearer of the instrument. It also includes a note promising the payment of any sum of money out of any particular fund which may or may not be available, or upon any contingency which may or may not be performed or happen". In view, however, of the lengthy and vehement argument addressed at the Bar by the learned Counsel for the petitioner, Mr. Sankara Kurup, it has become necessary to consider the question in some detail. The contention of Mr. Kurup as regards the construction of the document is that it is a composite document consisting of two instruments, the second sentence constituting an acknowledgment and the 3rd sentence constituting a record of a past agreement liable to duty under Arts.1 and 5 respectively of Schedule I of the Cochin Stamp Act. This contention is obviously unsound and may best be answered in the words of Lord Halsbury in (Elderslie Steamship Company Ltd., v. Borthuick) Law Reports (1905) Appeal Cases - 93 at 96. Referring to the document in question in that case Lord Halsbury said "you must read it as a whole. Mr. This contention is obviously unsound and may best be answered in the words of Lord Halsbury in (Elderslie Steamship Company Ltd., v. Borthuick) Law Reports (1905) Appeal Cases - 93 at 96. Referring to the document in question in that case Lord Halsbury said "you must read it as a whole. Mr. Carver has ingeniously spoken of independent contracts and independent paragraphs and so on, but we must remember that this is one contract and each of the parts of this contract must be read so as to give effect to the whole if it can." Reference may also be made to the case of P.C. Muthu Chettiar v. K.V. Meenakshisundaram Ayyar (A.I.R. 1928 P.C. 35) where Lord Atkinson said "But it has been long ago, and many times, decided that written documents must be construed as a whole, that each provision they contain must receive attention; and from their several provisions the true intention of the parties to them must be ascertained. In Mohamed Akbarkhan v. Attar Singh (L.R. 63 I.A. 29 - AIR 1936 PC 171) the Judicial Committee struck a note of caution against casting the negotiable net too wide, overruling the decision in I.L.R. 8 Cal. 645 expressly and other Indian decisions to the same effect impliedly and laid down the principle that a document has to be construed as a whole and according to what it primarily is and is intended to be. In that case the document did contain a promise to pay, but it was, nevertheless, held to be a receipt which in Their Lordship's view the document primarily was. The document in question in this case does contain an unconditional promise to pay money only to the plaintiff, clearly coming within the definition of a promissory note contained in the Stamp Act. It is however contended to be not a promissory note as it contains an acknowledgment of receipt of consideration. Such an acknowledgment will not make the document any the less a promissory note. It is satisfactory to note that Mr. Kurup did not content that, if his contention viz., that the document should be regarded as consisting of two instruments as aforesaid be not acceptable and that the document is to be regarded as one instrument it can be regarded as anything other than a promissory note. It is satisfactory to note that Mr. Kurup did not content that, if his contention viz., that the document should be regarded as consisting of two instruments as aforesaid be not acceptable and that the document is to be regarded as one instrument it can be regarded as anything other than a promissory note. The view of the Cochin High Court before and after the aforesaid pronouncement of the Judicial Committee has been uniform and in accordance with the view of Their Lordships - Narayanan Bhattathiripad v. Gopalan Nair (10 Co. L.R. 427), Madhavi Amma v. Raman Menon, 31 Cochin 125, Kuttiyali v. Abdurahiman, 32 Co. L.R. 343, and Naryana Panicker v. Varkey, 39 Co. L.R. 606 are the Cochin cases. 7. Mr. Kurup relied upon four decisions in support of his contention. They are Ramachandara Bacharai Mahashri v. Muka Kujan Mahar, A.I.R. 1934 Nag. 273, Ram Prasab v. Sheo Baksh Goshan, A.I.R. 1933 All. 179, Alodhyaprasad v. Mr. Sunki, W/o. Kedarrath Roy, A.I.R. 1938 Nag. 464 and Bogra Loan Office Ltd. v. Jyoish Chandra Chanda,1936 Cal. 399. The first two of these cases have no application. The question arising in this case did not arise and was not considered therein. The third case is distinguishable as there was no payee in the document in that case, that is to say, there was the absence of an essential element to constitute the document a promissory note. The last of the cases would appear to be against him because the learned judges held that the nature of an instrument must be decided on reading the document as a whole and so read, the document therein was not a promissory note but only a memorandum of a past agreement liable to duty as such under Art. 5 Schedule 1 of the Indian Stamp Act. 8. Point No. 2. Paragraph 1 of the plaint merely recites the aforesaid letter and states that it was executed on or about the 3rd Dhanu 1119. Paragraphs 2,3 and 4 state that demand was made for the amount thereunder, that Rs. 10 was paid towards it, that the plaintiff entitled to interest on the amount from the 29th Dhanu 1119 and that demand was made for the return of the said amount several times orally and by registered notices. Para. 5 states that the cause of action arose on and after 29.5.1119. 10 was paid towards it, that the plaintiff entitled to interest on the amount from the 29th Dhanu 1119 and that demand was made for the return of the said amount several times orally and by registered notices. Para. 5 states that the cause of action arose on and after 29.5.1119. The plaint is docketted as one to recover the amount due as per the letter executed by the defendant. There is nothing anywhere in the plaint even to suggest that there was any jural relation between the parties otherwise than as under the letter in question or that the plaintiff has any cause of action for or seeks to recover money under anything other than the letter. The date of the cause of action ie., 29.5.1119 is the date of repayment mentioned in the letter, the execution thereof being on or about the 3rd Dhanu 1119. The plaint was filed on 29.5.1122 as within time calculated from the said date of repayment. But for that date of repayment the claim would have been barred by limitation as the date of transaction is admitted to be 3rd Dhanu 1119 and no ground for exemption from limitation or extension of the period of limitation is mentioned in the plaint. 9. It is true that pleadings have to be liberally construed and regard must be had to the substance rather than the form. But in this plaint one seeks in vain to find even a suggestion that the suit is based upon anything other than the letter. This is a case where a justifiable claim is sought to be enforced upon an unjustifiable basis and that attempt is persisted in throughout, notwithstanding objection in that behalf taken by the opposite party and upheld by the court. This is an instance of a claim lost by carelessness in drafting the plaint to such an extent as to compel the court to dismiss the suit and make it impossible to decree the claim even by stretching at points in favour of the plaintiff in construing the plaint. 10. This is an instance of a claim lost by carelessness in drafting the plaint to such an extent as to compel the court to dismiss the suit and make it impossible to decree the claim even by stretching at points in favour of the plaintiff in construing the plaint. 10. Towards the conclusion of the argument, the alteration in the date contained in the letter and noted in the judgment of the Cochin High Court in connection with C.R.P. 107 of 1123 was pointed out by the learned Counsel for the petitioner and he frankly admitted that there is a change of the date that change came about after the execution of the letter and that the plaintiff is not in a position to say when ie., how long after the execution or by whom or under what circumstances the said alteration was made. A point of defence was made by the defendant based on this alteration of date and issue 4 was joined between the parties to this effect. "Is the plaintiff not entitled to any relief for the reason that the plaint document has been materially altered by him". No evidence having been taken in the case the courts below recorded no finding upon this issue. But in view of the admission made by the learned Advocate at the Bar as aforesaid the document becomes void on account of material alteration not accounted for by its custodian the plaintiff. Whether the document be a promissory note or not it having been altered materially - date of repayment being a material part of the instrument - it becomes void and unenforceable (vide Pachkodi Gulab Badhai v. Krishnaji AIR 1947 Nag. 145. The Civil Revision Petition is thus devoid of merit and is dismissed with costs. Petition dismissed.