Authored By : William Comer Petheram, Robert Fulton Rampini

William Comer Petheram, C.J.

1. This was a rule granted by this Court, under Section 25of the Small Cause Courts Act, to revise an order of the Judge of the SmallCause Court at Krishnaghur by which he dismissed the petitioners suitwith-costs.

2. The cause of action and the defence were stated to bemoney due on a hatchitta, dated 3rd Aghran 1299, for Rs. 200, and interestthereon at the rate of Rs. 3 per mensem. Amount Rs. 416.

3. Defence.-Defendant admits that he borrowed Rs. 200 fromModhusudan Sanyal, and executed the hatchitta sued upon, but pleads payment ofthe loan with interest in Magh 1299.

4. The questions fixed for trial were-

(1) Is the hatchitia sued upon admissible in evidence

(2) Is the suit maintainable in case the first issue isdecided against the plaintiff

(3) Is the defendants plea of payment true

5. When the document was produced, it appeared that it borean anna receipt stamp only, and as the Judge came to the conclusion that it wasa promissory note and should have been stamped with a two-anna stamp, hedecided the first issue in favour of the defendant and refused to admit thedocument in evidence.

6. He then proceeded to try the second issue; came to theconclusion that the plaintiff had no cause of action independently of thedocument; and, as that had been excluded, dismissed the suit without trying thethird issue.

7. I think that the Judge was wrong in thinking that theplaintiff had no cause of action independently of the document; and, as that isthe case, it will not be necessary for me to express any opinion on thequestion whether the stamp was sufficient.

8. The defendant by his written statement admitted that heborrowed Rs. 200 from the plaintiff, and there can be no doubt that an impliedcontract to repay money lent always arises from the fact that the money islent, even though no express promise, either written or verbal, is made torepay it. As this is the undoubted law, it must follow that, when the defendantadmits that he borrowed the Rs. 200, he also admits that he promised to repayit; and if he has not done so, the plaintiff may maintain an action against himfor breach of his implied promise or contract, entirely independently of any securitywhich may have been given for the advance. The case which has been relied uponby the defendant is that of Sheikh Akhar v. Sheikh Khan I.L.R. 7 Cal. 256, inwhich Sir Richard Garth said: "When the original cause of action is thebill or note itself and does not exist independently of it, as, for instance,when in consideration of A depositing money with B, B contracts by a promissorynote to repay it with interest at six months date, here there is no cause ofaction for money lent or otherwise than upon the note itself, because thedeposit is made on the terms contained in the note and no other." Thesewords, taken alone, may seem to indicate that when a bill or note is taken fora debt the action must be brought upon the bill or note; and that if for anyreason the document is excluded, the action must fail; but a reference to theearlier portion of the judgment shows that such was not the meaning of theChief Justice, and that when he spoke of a deposit he did not mean a loan, ashe then says where money is lent and a bill or note given for the loan which isnot paid at maturity, the creditor may disregard the note and sue on theoriginal consideration. This is in accordance with the case of Golap ChandMawaree v. Thakurani Mohohoom Kooaree I.L.R. 3 Cal. 314, and with manyunreported decisions of this Court, and is, in my opinion, the law in thiscountry as well as in England.

9. For these reasons I think that the Small Cause CourtJudge was wrong in deciding the second issue in favour of the defendant, andthe rule must be made absolute to reverse his decision on that issue.

10. The result will be that the judgment dismissing theaction will be set aside and the case sent back to the Small Cause Court to trythe third issue and to dispose of the case in accordance with his finding onit.

11. The costs of the rule will abide the event of the trial.

Robert Fulton Rampini, J.

12. I agree.

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Pramatha Nath Sandal and Ors. vs. Dwarka Nath Dey (12.05.1896 - CALHC)