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Present : De Sampayo J.
MOHAMADU BHAI v. JAMES.311—C. R. Colombo, 64,658.
Action to ■ recover loan—Written contract—Must action be based on writtenonly—Evidence Ordinance, s. 91.
In the case of a contract of loan, the lender is entitled to maintainan action to recover the amount independant of any writing whichthe debtor may have given. A common instance of such a case iswhere a plaintiff, in addition to declaring upon a formal document,includes in his plaint what is known as the money counts.
' J^'HE facts appear from the judgment.
E. Q. P. Jayatillelce, for appellant.—The document referred to isnot a promissory note, but a mere memorandum of the loan.Even if it is treated as a promissory note, which is inadmissible inevidence because it is unstamped, it is open to the plaintiff tomaintain this action as one for the recovery of money lent (seeSockalingem Chetty v. Kathitha Beeke; 1 VaUiappa Chetty v. DeSilva.*
1 (1916) 2 O. W. B. 55.* (1916) 5 O. W. B. 251. .
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February 25, 1919. De Sampayo J.—
Hie plaintiff, who is an Afghan money lender, has brought thisaction to recover from the defendant Bs. 200, which he alleged helent to the defendant. The defendant, in substance, pleaded thathe only borrowed and received Bs. 10 in a case of necessity, but thatplaintiff had intimidated him and forced him to sign a document forBs. 200, though the real transaction was that Bs. 10 was borrowedand was to be paid with Bs. 2 as interest. The issue stated at thetrial was as to whether the plaintiff lent the defendant Bs. 200 orBs. 10. The plaintiff got into the witness box and stated thatdefendant had borrowed this amount from him, and had writtendown particulars in the plaintiff’s book. Thereupon objection wastaken that oral evidence of the transaction could not be givensince the contract had been reduced to writing. The Commissionerupheld the objection, and dismissed the plaintiff’s case, because thewriting itself was unstamped as a contract and was inadmissiblein evidence. The document referred to is filed in the case, and I amunable to agree that it is a document of the description mentionedin section 91 of the Evidence Ordinance, upon which reliance isplaced. It is a mere scrawl, stating the name of the defendant, theamount Bs. 200, the plaintiff’s name, and the further legend: “ Itwill be paid Bs. 12.” It is not even signed. It is difficult to puta construction on the last words which I have quoted. It maymean that the amount of Bs. 200 was to be paid in instalments ofBs. 12; it may^aJso support the defendant’s answer that Bs. 200is a mere nominal sum, and that his indebtedness was to be fullydischarged by the payment of Bs. 10 plus Bs. 2 interest, altogetheramounting to Bs. 12. But at the present moment, whatever may bethe construction of the document, I am concerned with the questionwhether this is a document in which the terms of the contracthave been reduced to writing in the sense of the section referred to.It seems to me it is a mere memorandum, the purpose of whichwas to take in defendant’s own handwriting an acknowledgment ofthe receipt of the money. It is in nowise a form of contract ofthe kind contemplated by section 91 of the Evidence Ordinance.Moreover, in the case of contract of loan, the lender is quite entitledto maintain an action to recover the amount independently of anywriting which the debtor may have given. A common instance ofsuch a case is where a plaintiff, in addition to declaring upon a formaldocument, includes in his plaint what is known as the money counts.The admissibility of the document itself is a different question.But I think the plaintiff is entitled to establish his case, if he couldby oral evidence. The decree of dismissal is set aside, and the casesent back for further proceedings in due course. The plaintiff willhave the costs of the appeal.
MOHAMADU BHAI v. JAMES