Sadasiva Aiyar, J.:— The plaintiff is the appellant in this Letters Patent appeal. He sued on the strength of a letter which has been held to be inadmissible in evidence and his suit has been dismissed by all the Courts. I shall now briefly refer to the arguments advanced by his learned vakil and to some of the cases quoted during those arguments.
2. In the cases in the foot-note to Queen Empress v. Somasundaram Chetti(1) and in Bharata Pisharodi v. Vasudevan Nambudri(2), relied on by him, the documents themselves showed that they were not to be treated as vouchers or securities unless the persons to whom the letters were sent gave loans as requested in the letters. As said in Bharata Pisharodi v. Vasudevan Nambudri, “there is no unconditional undertaking on the face of the document to pay the money.” In the present case the so called varthamanam or letter says: “Amount of cash borrowed of you by me is Rs. 350. I shall, in two weeks' time, returning this sum of three hundred and fifty rupees with interest thereon at the rate of 1 rupee per cent, per month, get back this letter.” It is clearly an unconditional understanding, on the face of the document, to repay borrowed money, and it is, therefore a promissory note and not merely an offer to borrow or an acknowledgment of indebtedness. As regards the case in Tirupathi Goundan v. Rama Reddi(3) the language of the document in question in that case was quite different and very vague. Even so, I wish (with the greatest respect to the Judges who decided it) to be permitted to reserve my opinion if a document similarly worded happens to come before me for interpretation.
3. I therefore agree with the lower Courts, that the varthamanam sued on is a promissory-note and is inadmissible in evidence as not duly stamped.
4. As regards the contentions that, apart from the promissory note, there was an independent obligation implied from the receipt of the plaintiff's money by the defendant and that obligation could be established by proof of that fact, I think we are bound by the decisions of Pothi Reddi v. Velayudasivan(4) and Soma Sundaram v. Krishnamurti(5). It is contended that Pothi Reddi v. Velayudasivan is not good law, as the learned Judges misunderstood an observation of Garth, C.J, in the case of Sheikh Akbar v. Sheikh Khan(6), on which they relied in support of their position I am not satisfied that the learned Judges did so misunderstand Sheikh Akbar v. Sheikh Khan. Even if they misunderstood Sheikh Akbar v. Sheikh Khan, they give independent reasons as follows: “It is a necessary condition to every written contract that the terms should be orally settled before they are reduced to writing, and to hold, when such a contract has been reduced to writing, that a plaintiff can take advantage of the absence of a stamp on the promissory-note to sue at one for the return of money which he may have contracted to lend for a fixed period, would entirely defeat the provisions of Section 91 of the Evidence Act. “Whatever may be the views of English Courts or even of the other High Courts [see the cases collected in Baij Nath Das v. Saligram(7)], I feel bound by Pothi Reddi v. Velayudasivan, not only because it has never been dissented from, but because the reasons above given appeal to my mind (if I may say so with respect) as very cogent. The contract in the case of a loan and a simultaneous promissory note has been reduced to writing in the form of the note which contains the definite terms of the contract and we cannot, in my opinion, resort to inconsistent or consistent implied contracts in such cases simply because the contract as entered in the promissory-note cannot be admitted in evidence. Not only has Pothi Reddi v. Velayudasivan not been dissented from, but it has, without disapproval, only been distinguished in Ramachandra Rao v. Venkataramana Ayyar(8) and Yarulgadda Veeraraghavayya v. Gorantla Ramayya(9), while it has been expressly followed in Chinnappa Pillai v. Muthuraman Chettiar(10) and Kodali Mallayya v. Tarigopala Ramayya(11).
5. To import the doctrines, laid down in English cases about vague obligations to repay arising out of equity and not out of contract, or about obligations which can be enforced if the plaintiff skilfully draws up his plaint as one on account for money had and received, cancelling the real contract of loan which had been reduced to the form of a document, is, it seems to me, merely trying to nullify Section 91 of the Evidence Act.
6. I do not intend to say that if there is a contractual or other definite completed obligation capable of proof prior in date to the invalid promissory note the plaintiff cannot sue on that prior independent obligation. But to treat the money paid at the very time of the execution of the promissory-note inadmissible in evidence as giving rise to an independent contractual or other obligation seems to me to be inadmissible.
7. I would therefore dismiss the appeal with costs.
Spencer, J.:— I read the plaintiff's unfiled exhibit as containing a promise to pay. This promise, though not a promise to pay on demand or to order, is an unconditional promise. There are no signatures of attesting witnesses so as to convert the document into a bond.
8. The mere use of the word “varthamanam” instead of promissory note will not deprive the document of its character of promissory note if its terms show that it is such.
9. The execution of the document and the payment of the money may be treated as practically simultaneous as the document was not made over to the plaintiff until it was ascertained that he was prepared to make the advance. It is all part of the same transaction.
10. It is argued that the plaintiff may have a separate cause of action to fall back on the original liability of the debtor and to sue the defendant for money had and received.
11. This is the view taken in Krishnaji Narayan v. Rajmal Manak Chand(12) and more recently in Baij Nath Das v. Saligram where the matter received full discussion.
12. The trend of Madras decisions is however different: see Pothi Reddi v. Velayudusivan, the same principle having been followed in Chinnappa Pillai v. Muthuramana Chettiar and Kodali Mallaya v. Tarigopala Ramayya. I am not prepared to dissent from the view taken repeatedly by this High Court by various learned Judges. I therefore concur in dismissing the Letters Patent appeal with costs.
S.N/R.K
13. Appeal dismissed.