1. This is a defendant's appeal arising out of a suit to recover Rs. 2,016-12-9. Conceding that an under-stamped promissory note executed by the defendant was invalid for the purpose of creating an obligation, the plaintiff founded his claim on the averment of money had and received by the defendant and sought to substantiate his plea by oral evidence to prove that the sum of Rs. 1,200 was received by the defendant on 1st August 1928, by way of loan repayable with interest at 2 per cent per mensem. Both the Courts below concurrently found that the defendant received the sum of Rs. 1,200 as a loan and awarded, interest at the rate of 2 per cent per mensem on proof of an oral agreement in that behalf. In reaching that conclusion however they took into consideration the understamped promissory note as a piece of evidence containing an admission of the receipt of Rupees 1.200 alleged to have been advanced to him as a loan.

2. It is contended on behalf of the appellant that the concurrent findings of the Courts below are in point of law vitiated for reasons mentioned below: (1) that the promissory note being insufficiently stamped was under S. 35, Stamp Act, inadmissible for any