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TMI Blog1935 (10) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... d that on the day in question he executed the promissory note sued upon, but he alleged that he had not received the whole of the consideration stated upon the face of the note. According to the defendant a sum of ₹ 3,750 only was paid by the plaintiff and that the balance, in spite of repeated promises, was never paid. The defendant further alleged that eight months after the promissory note was executed, the rate of interest was reduced from the agreed sum of annas 12 per cent per mensem to a sum of annas 10 per cent per mensem. 2. Upon proceedings having been brought for the sum of ₹ 5,350, alleged to be due from the defendant, the defendant admitted that a sum of ₹ 4,600 was due by way of principal and interest and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot been in fact advanced and that the sum actually lent to the defendant amounted to ₹ 3,750 only. Upon the issue directed to the amount of the consideration which actually passed, he rightly held that the onus, of showing that the sum stated on the face of the note was not in fact lent, rested upon the defendant. He, however, held that the defendant had discharged the onus and established that he had received a sum of ₹ 3,750 and not ₹ 4,200 as stated on the face of the note. The appellant has urged before us in this appeal that we should come to a contrary conclusion upon the evidence. We have considered the evidence which was placed before the learned Subordinate Judge and have come to the conclusion that the defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiff and conducting litigation for him and that being so he could not, by reason of Section 126, Evidence Act, give evidence as to communications made to him without the express consent of his client, viz., the plaintiff himself. In the present case the vakil gave evidence against his own client and clearly without the latter's consent. Even eliminating the evidence of this witness the evidence of the defendant himself and his munim, coupled with the books, does establish that the defendant received a lesser sum than that which appears on the face of the note. 5. The plaintiff in evidence swore positively that he had advanced the whole sum of Ks. 4,200, but it is to be observed that he produced no documentary evidence in su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest, for the purpose of contradicting, varying, adding to, or subtracting from its terms. There is however a proviso to this section, viz., provision, which allows the existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, to be proved except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents. It is contended by the appellant that a promissory note is a contract or matter required by law to be reduced to the form of a document. Section 4, Negotiable Instruments Act, defines a promissory note as an instrument in w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms relating to such interest is a variation of a contract required by law to be in writing and that being so such variation must be in writing by reason of Section 92, Evidence Act, and proviso 4 thereto. In the present case the defendant's allegation is that an oral agreement was made between the parties reducing the rate of interest, but for the reasons we have given, we are bound to hold that evidence of such oral agreement is inadmissible by reason of the provisions of the Evidence Act to which we have referred. 8. No point was taken by the appellant, and rightly, upon the admissibility of the evidence showing that the amount of the loan was in fact less than the sum shown on the face of the note. It is always open to one of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was fully entitled to refuse the cheque tendered as it was tendered in full satisfaction of the claim. In our judgment, the plaintiff at the date of hearing was entitled to recover from the defendant the principal sum advanced, viz., ₹ 3,750 and interest at annas 12 per cent per mensem up to the date of hearing. The parties have agreed that this sum amounts to ₹ 4,835, and in our judgment a decree should have been given to the plaintiff for the sum with proportionate costs. 10. It is clear from the terms of the order passed by the learned Subordinate Judge that the deposit of ₹ 4,600, which had been made by the defendant was brought on that day to the plaintiff's notice. It was open to the plaintiff on 23rd Decembe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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