Suit filed on earlier promissory note not barred by limitation.

1. The defendant is the appellant. The suit was filed by the plaintiff respondent for the recovery of a sum of Rs. 24655 due under two promissory notes dated 25-6-1969 Ex. A-1 and 2-9-1969 Exhibit A-2. A sum of Rs.1000 was paid towards the promissory note dated 25-6-1969 and an endorsement was made on 24-11-1969. On 7-4-1972, he executed a fresh promissory note for a sum of Rs. 18,750/-. Which was the total amount due under Exs. A-1 and A-2 with interest up till that date, on the same day identical endorsement were made in Exs. A-1and A-2 to the effect that by execution of the promissory note dated 7-4-1972 the amount due under the promissory note has been discharged. Subsequently the plaintiff herein assigned the promissory note dated 7-4-1972, in favour of one Muthukaruppan chettair. The assigned filed O.S 34 of 1973 for the recovery of the amount due under the note dated 7-4-1972. It appears that the defendant contented in the suit that Muthukaruppan was not a bona fide holder in due course that the suit was premature since one year thavanai was fixed for payment, that the promissory note was an instrument payable otherwise that on demand and not a negotiable instrument and that it is also inadmissible in evidence as it was insufficiently stamped. On such a plea taken by the defendant the assignee filed 1.A 446 of 1974 for permission to withdraw the suit with liberty to file a fresh suit on the same course of action. The petition was ordered on 30-7-1974 by which the Court permitted the plaintiff to withdraw the suit with liberty to file a fresh suit on the same subject matter. However, it appears that Muthukaruppan did ant file a suit, that on the other hand obtained the consideration -paid from die plaintiff herein and handed over the invalid promissory note dated 7-4-1972. Thereafter the plaintiff filed this suit on the original promissory note- Ex A-1 dated 25-6-1969 and Ex. A-2 dated 2-9-1969 and pleaded that the endorsements made on, 7-4-1972, on those promissory notes amounted to an acknowledgment of liability and that the suit filed within three years from 7-4-1972, is not barred by limitation. The learned Subordinate Judge who tried, the suit, accepted this contention and held that the endorsement on Exs. A-1 and A-2 dated 7-4-1972 amounted, to an acknowledgment of a subsisting liability or outstanding debt on that date and the substitution of a new security for the same and that therefore the suit was in time.

2. The learned counsel for the, appellant raised two main contentions : The first contention was that since Exhibits A-1 and A-Z are superseded by the execution of a fresh promissory note dated 7-4-1972 the present suit on the basis of the original two promissory note is not maintainable. In this connection he also relied on the fact that the assignee of the promissory note dated 7-4-1972, filed 0. S .34 of 1973 on the file of the learned Subordinate Judge Pudukottai, and withdraw the same with permission to file a fresh suit on the same cause of action. According to the learned counsel in view of the filing of the suit and its withdrawal, with liberty to file a fresh suit only a fresh suit on the basis, of the promissory note dated 7-4-1972 could be filed. As already stated the plea in the earlier suit by the defendant was that the promissory note dated 7-4-1972 was invalid as it had been insufficiently stamped. It is a well settled proposition that in the case of an insufficiently stamped promissory note it is open to the promise to relay on the original cause of action and claim the recovery of the amount. It was therefore not necessary for the plaintiff to relay on the invalid promissory note dated 7-4-1972 and he could file the suit on the original promissory notes Exs. A-1 and Exs.A-2 it the suit is otherwise in time. The fact that be purposed to assign an invalid Promissory note and again got it back from the assignee after paying the money does not in any way affect the right of the plaintiff