Once a document is admitted in evidence, as per S.35 of the Kerala Stamp Act, the question of admissibility cannot be raised thereafter, and the party staking his claim on the instrument will not be defeated on the ground of the initial defect in the instrument.

The legal representatives of the plaintiff in O.S.No. 5 of 1974 on the file of the Court of Subordinate Judge of Kozhikode are the appellants in the second appeal.

2. The suit was filed for recovery of an amount of Rs. 7,993.35 on the basis of a document which is described as voucher in the plaint as amended. The defendant in the written statement contended that he had not borrowed any amount. He also claimed the benefit under Act 1 of 1977 and Ordinance 9 of 1977. The learned Subordinate Judge found that the money was borrowed and that he was not entitled to the benefits of Act 1 of 1977 and Ordinance 9 of 1977. He further held that the suit document is not a voucher but a promissory note, that one of the stamps was not cancelled and that therefore the document is inadmissible in evidence. However, the trial Court took the view that the debt was an anterior debt and that the plaintiff was entitled to fall back on the original cause of action and in this view of the matter, the suit was decreed as prayed for.

3. On appeal, the learned District Judge held that the plaintiff was not entitled to fall back upon the original consideration and the suit was dismissed. The learned District Judge relied on the observation contained in the order of this Court in C.R.P. No. 3813 of 1977. In the original plaint, the plaintiff described the document as promissory note. He filed a petition seeking to amend the plaint to substitute the word voucher for promissory note. That application was dismissed by the trial Court, but in C.R.P. No. 3813 of 1977, this Court allowed the application for amendment.

4. In this second appeal, the learned counsel for the appellants raised several contentions. He submitted that the finding of the lower appellate Court that the plaintiff cannot fall back upon the original consideration is not correct. He contended that Ext. A-1 would indicate that the debt is an anterior debt and is independent of the promissory note executed as a collateral security and in the circumstances, the trial Court was right in holding that the plaintiff is entitled to fall back on the original consideration. He also contended that Ext. A-1 promissory note was admitted in evidence and in view of the specific provision contained in S.35 of the Kerala Stamp Act, which corresponds to S.36 of the Indian Stamp Act, it is not open to the Court to consider the question of admissibility of the document.

5. There cannot be any doubt that if the transaction of loan is anterior to and independent of the execution of the promissory note, the creditor is entitled to fall back on the original consideration in the event of the promissory note being found inadmissible in evidence for the reason that promissory note is not stamped or insufficiently stamped or that there is failure to cancel stamps. This question was considered by a Division Bench of this Court in Saffia Khathoon v. Kunhambu, 1977 Ker LT 448. This Court said :

"It is clear that the promissory note had been executed by 1st defendant only in acknowledgment of the loan that had already been advanced to him by the plaintiff, thereby making it clear that the transaction of loan was anterior to and independent of the execution of the promissory note. The legal position is well established that in such circumstances the creditor is entitled to maintain a suit for recovery of the debt based on the original contract of loan in case the promissory note is found to be defective in any respect."

6. However, in the instant case, there is nothing to show that the loan transaction was anterior to and independent of the execution of the promissory note. A reading of the plaint would clearly show that the suit is based on promissory note and not on the original consideration or on a transaction anterior to or independent of the execution of the promissory note. As indicated above, finding that one of the stamps was not cancelled, and that the promissory note would be inadmissible in evidence, the