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TMI Blog1932 (4) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... statement on 1st October, 1928, in which he admitted the execution of the promissory note sued on but pleaded discharge. Subsequently, as the learned District Munsif remarks in his judgment, when the argument upon the question of discharge was proceeding, the defendant discovered a legal objection to the maintainability of the suit on the ground that the stamp affixed to the promissory note had not been cancelled as required by Section 12 of the Stamp Act and that the promissory note should accordingly be treated unstajnped for any purpose. The learned District Munsif, after noting that the stamp on the promissory note was in no way cancelled but remained intact without any marks on the same, came to the conclusion that the promissory not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this point between the decisions of the several High Courts in India. It was submitted that the decision in Muthu Sastrigal v. Visvanatha Pandara Sannadhi (1913) I.L.R. 38 M. 600 : 26 M.L.J. 19 by Sadasiva Aiyar and Spencer, JJ. is clear that, in a case where the advance of the money and the execution of the promissory note are simultaneous, it would be against the policy of Section 91 of the Indian Evidence Act to allow the plaintiff to recover on the footing of money advanced when the promissory note is inadmissible in evidence. It was also mentioned to me that that decision of the learned Judges has been subsequently followed in this Court in other cases, though it must be said, that in none of the other cases, to which my attention was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses put by the learned Judge the plaintiff would be entitled to recover. Illustration (b) of Section 91 of the Indian Evidence Act would also prima facie seem to be against the plaintiff in such cases. The learned Judges in Muthu Sastrigal v. Visvanatha Pandara Sannadhi (1913) I.L.R. 38 M. 660 : 26 M.L.J. 19, when informed by counsel of the fact that other High Courts have taken a different view, declined, as I understand their judgment, to have the decision of the Madras High Court re-opened on this point but were quite satisfied that the Madras view should be followed in this Presidency. Now, if the question arose in that neat form, namely, when the advance of the loan and the execution of the promissory note are simultaneous and form par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case is concerned, then, having regard to the finding of the Munsif, as I understand the same, and having regard to the decision in Muthu Sastrigal v. Visvanatha Pandara Sannadhi (1913) I.L.R. 38 M. 660 : 26 M.L.J. 19 the first argument raised by the learned advocate for the plaintiff-petitioner before me should be overruled. 3. But, in my opinion, this does not, by itself, settle the question. An application for amendment of the plaint was made in the Lower Court, as already mentioned by me. The plaintiff who wants to have the plaint amended by including a cause of action based upon something other than the execution of the promissory note, will have to make other material averments in order to entitle him to a decree, in spite of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is, what is the effect of the admission made by the defendant in the written statement filed by him on 1st October, 1928, admitting the allegations in the plaint and the promissory note on which the suit was based? The only defence raised in the written statement was one of discharge, and from the notes-paper I find that that is the view that the District Munsif also took of the written statement. Having then admitted execution of the promissory note but only pleaded discharge, I have to consider the effect of Section 58 of the Indian Evidence Act on the rights of the parties to the present case. Under Section 58 of the Indian Evidence Act no fact need be proved in any proceeding which the parties thereto or their agents agree to admit at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore the circumstance that the promissory note was not admissible in evidence is immaterial for the purposes of this case. The whole discussion turning on the inadmissibility of the promissory note is, as far as I am able to see, quite irrelevant in the circumstances, having regard to the defendant's admission referred to by me. 5. The second point that has to be considered is this : the promissory note in question has been exhibited and marked as Ex. A in this case. I have looked into the document. It bears an endorsement to the following effect: - Produced on 4-8-28 by plaintiff's pleader, admitted by the defendant in his written statement on 10-12-28 and filed as Ex. A ; then there is the initial or signature of the Distric ..... X X X X Extracts X X X X X X X X Extracts X X X X
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