A person who has lent money on a promissory note, which is inadmissible in evidence owing to a defect in the stamping, cannot sue to recover the debt apart from the note, if the promissory note embodies all the terms of the contract.

ORDER:- The defendant is the petitioner in these revisions.- C.R.P. No. 3388 of 1990 is against the order passed in I.A. No. 45 of 1990 in A.S. No. 46 of 1990. C.R.P. No. 3389 of 1990 is against the order passed in I.A. No. 46 of 1990 in A.S. No. 47 of 1990. Before the appellate Court, the plaintiff/ respondent herein filed the said petitions for amendment under O. 6, R. 17, C.P.C. In the trial Court the suits were filed to recover the amounts due on the promissory notes. The suits were dismissed since the promissory notes are not properly stamped. As against the judgments of the trial court, the plaintiff' filed the above said two appeals before the first appellate court. In the first appellate court, the plaintiff sought for the amendment of the prayer portion of the plaints so as to enable the plaintiff to sue on original cause of action. This amendment was allowed by the first appellate court, in both the appeals. As against these orders, the present revisions were preferred by the defendant.

2. The learned counsel appearing for the petitioners herein submitted that the lower court was not correct in allowing the amendment as prayed for in view of the decision of this court reported in (1938) 2 MLJ 189 : (AIR 1938 Madras 785) Perumal Chettiar v. Kamakshi Ammal Uller Bench. This decision was also followed in 1990 TLNJ 49 Nachimuthu Gounder v. Chinnappa Gounder. Therefore, it was submitted that it is not open to the plaintiff to proceed on the original cause of action by way of amending the plaints at the appellate stage.

3. On the other hand the learned counsel appearing for the respondent submitted that in view of the full bench decision of this court rendered in the case of Kasi Visvanandha Mudaliar v. V. A. Kuppuswami Naidu and two others, (1936) 71 MLJ 250 : (AIR 1936 Madras 785) the lower court was perfectly justified in allowing the amendment.

4. I have heared the rival submissions made by the parties.

5. The fact remains that the suits were originally filed on promissory notes. The trial court held that the promissory notes were insufficiently stamped. Accordingly, the suits were dismissed. The appeals were filed against the said judgments of the trial court. In the appeals, the plaintiff sought for amendment of the prayer portion in the plaints so as to enable him to sue on the original cause of action. These amendments were allowed by the trial court. In similar circumstances in (1936) 71 MLJ 250 : (AIR 1936 Madras 785) in the case of Kasi Visvanadha Mudaliar v. V. A. Kuppuswami Naidu and two others (Full Bench), this court held as under (at page 787) :

"that since the defendants could not be prejudiced by allowing on amendment of the plaint except that it deprived them of the plea of limitation as regards the promissory note, the original debt could be sued upon irrespective of the promissory note; it did not appear also that the defendants could have any possible defence to that claim save the one set up namely discharge which had been negatived. The amendment ought to have been negatived. The amendment ought to have been allowed and it followed from that, that since the last payment of instalment was within time from the date of the present suit the claim upon the original debt would not be barred. "

6. Another decision on this aspect brought to my notice was that reported in the case of Perumal Chettiar v. Kamakshi Ammal (1938) 2 MLJ 189 : (AIR 1938 Madras 785) wherein a fuller bench of this court consisting of 5 Judges held as under :

"Held, by the Full Bench (Stodart, J. dissenting) that the answer to the question whether a person who has lent money on a promissory note, which is inadmissible in evidence owing to a defect in the stamping, can sue to recover the debt apart from the note, depends on the circumstances under which the instrument was executed. If the note was given in respect of an antecedent debt, or as collateral security or by way of conditional payment or if the note does not embody all the