Judgement

Appeal from a judgment and decree of the High Court in its appellate jurisdiction (October 8, 1912) reversing a judgment and decree of Davar J. (April 11, 1912).

The suit was instituted in the High Court by the respondent against the appellant to recover Rs.50,000, the amount of a promissory note dated December 23, 1907, made by the appellant jointly with Hyderally Cassumji, Sons & Co. (hereinafter called Hyderally) and payable upon demand to the respondent or order. Under a written agreement dated August 1, 1907, the appellant had agreed to advance to Hyderally Rs. 1,50,000 for the purpose of paying off a debt due from Hyderally to the appellant. The Rs.l,50,000 were payable by three instalments of Rs.50,000 each, of which two had been paid to Hyderally, and by him paid to the appellant, and the third was not payable until January 30, 1908. The appellant in December, 1907, required Rs.50,000 to meet a hundi then falling due and asked Hyderally for repay ment of the Rs.50,000 still owing and suggested that Hyderally should arrange with the respondent to pay the remaining instalment of Rs.50,000, due under the agreement upon January 30, 1908, immediately. It was in these circumstances that the joint promissory note was given; it was admitted that the respondent had paid the Rs.50,000 and that the money had reached the hands of the appellant. The respondent by his plaint set out the circumstances and alleged that it was arranged between the parties to the note that the appellants liability upon it should cease upon January 30, 1908, if Hyderally had then fully secured the respondent for all the money due to him which he had agreed to do, but that the security had not been given.

The appellant by his written statement alleged that there was an oral agreement that his liability upon the note should cease upon January 30, 1908.

At the trial evidence was admitted on behalf of both parties as to the circumstances under which the note sued upon had been given and of the oral arrangement made in respect of it. The appellants evidence was to the effect that the arrangement was that on January 30, 1908, the advance which the respondent had } agreed to make to Hyderally on that date should be regarded as having been made by the money paid under the promissory note sued upon, and that the liability upon the note should be held or satisfied by a fresh note to be granted by Hyderally to the respondent for that agreed advance.

Davar J. did not regard the respondents (plaintiffs) evidence as to the oral agreement as reliable, and, treating his pleading as an admission that there was some arrangement under which the note sued upon was not to be valid after January 30, 1908, made a decree in favour of the appellant. Upon appeal the Court (the Chief Justice and Chandavarkar J.) reversed this decision upon the ground that the oral agreement set up by the present appellant (even if established by the evidence which the learned judges thought it unnecessary to discuss) was one which varied the terms of the written contract contained in the promissory note and was consequently inadmissible in evidence by s. 92 of the Indian Evidence Act, 1872. The learned judges accordingly made a decree in favour of the present respondent for Rs.50,000.

Upjohn, K.C., and E. B. Raikes, for the respondent. The evidence given at the trial established that there was an agreement under which upon January 30, 1908, the Rs.50,000 to be advanced under the agreement of August 1, 1907, was to be treated as already made, and the liability upon the note was to be satisfied by a fresh note to be given by Hyderally for that agreed advance. This agreement was not one which varied the terms of the promissory note. It dealt with a matter as to which the note was silent and was admissible in evidence under the Indian Evidence Act, 1872, s. 92, proviso 2. -[ Bholanath Khettri v. Kaliprasad Agarwalla (( 1871) 8 Beng. L. R. 89.), Harris v. Rickett (( 1859) 4

H. &N. 1.), and