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TMI Blog1965 (4) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... to the borrowing of money on the basis of the promissory note The defence need not be stated as it is not relevant for the purpose of this revision. On 1-9-1964 plaintiff filed an application for amendment of the plaint under Order ft, Rule 17, Civil Procedure Code. Certain portions of the plaint were prayed to be deleted and to be substituted by the averments that there was an oral agreement that the principal and interest at 12 per cent per annum would be paid on demand. The object of the amendment was to clearly state that the plaint is based on the original transaction of loan and not on the promissory note. The learned S C. C. Judge rejected the prayer for amendment on that very day. The Civil Revision has been filed against this o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oan de hors the promissory note This necessitates an examination of the provisions of Section 91 of the Evidence Act which lays down that when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained. Illustration (b) appended to the Section is as follows: If a contract is contained in a bill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is an unconditional undertaking by maker to pay a certain sum of money The instrument does not give any indication at all as to why and I for what consideration the undertaking is given in other words the nature of the consideration for which the promissory note was executed cannot be made out from the recitals of the promissory note, though in certain classes of such instruments the matter might have made it clear In law, the absence of sued description would not detract from the value of the instrument being a promissory note. This aspect of the matter must always be borne in mind while examining the theory of exclusion of the oral agreement of loan. The consideration of the promissory note nun be complete discharge or satisfact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption is that it operates as a conditional payment only. The same principle would apply to a case of contemporaneous loan. In other words, if the agreement between the parties in respect of a contemporaneous loan is that the, loan would not be independently actionable, if the promissory note becomes inadmissible, no suit on the original cause of action would lie. In other cases the claim on the original cause of action can succeed 4. In Lakshmi Narain v. Mt. Aparua Devi the position has been well summarised The passage may be quoted as according to me. it gives the correct law. When a promissory note is not taken in discharge of an oral contract of loan but is taken only by way of conditional payment or collateral security, as it will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been fully argued and the line distinctions were not kept in view The Bench decision was not noticed In Parmananda patnaik v Golakchari Das. 25 CAL LT 545. most of the aforesaid Full Bench decisions were noticed, but my learned brother Barman. .1. did not express any view on this aspect of the question. 6. The main question to be considered in this revision is whether the amendment should be allowed. On a perusal of the plaint, it cannot be said that the plaintiff did not bring the suit on the original cause of action. Paragraph 2 of the plaint closely shows that the promissory note was executed by way of security for realisation of loan and in evidence thereof. In paragraph 6 the cause of action has however, been given as the hand-n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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