Sheo Nath Prasad vs Sarjoo Nonia And Anr. on 12 March, 1943
In the Full Bench case in Perumal Ohettiar v. Kamakshi Ammal ('38) 25 A. I. R. 1938 Mad. 785 Sir Varadachariar summarily disposed of the point in the following few words at p. 794:
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Perumal Chettiar vs Kamakshi Ammal on 10 February, 1938
Vasanji Mavji And Company, A Registered ... vs K.P.C. Spinners, A Partnership Firm, ... on 6 January, 1982
8. We do not think how the above decisions will help the respondents in this case. In those cases, the payment made either by the execution of a promissory note or by a cheque was treated as conditional so as to enable the creditor to have recourse to the original cause of action. The principle laid down in those cases is that where the amount of the promissory note or the cheque issued by the debtor for some reason or other could not be realised by the creditor the latter could fall back on the original cause of action and recover the earlier debt. In this case, though a reference has been made to the circumstances under, which the cheque had1 been issued, the suit simpliciter is one to "recover amounts covered by the three cheques which had issued by the defendants and which had been dishonoured. The decisions referred to above specifically proceed on the basis that the creditor has got a remedy to recover the amounts covered by the promissory note or the cheque. The question whether the creditor can file a suit to recover the amount covered by the dishonoured cheques without falling back on the original debt did not come up for consideration in these cases. In those cases, the question was when the promissory note given in discharge of the earlier debt cannot be enforced for any reason, whether the creditor can fall back on the original cause of action and recover the debt. The right of the appellant in this case to sue on the dishonoured cheque cannot be doubted. Though the plaint refers to the antecedent facts which gave rise to the issue of the cheques by the, defendants in favour of the plaintiff, the suit is in substance a suit on dishonoured cheques. Such a suit cannot be taken to arise solely out of the contract entered into by the plaintiff with the defendants for supply of cotton.
Thenappa Chettiar vs Andiyappa Chettiar on 9 November, 1970
12. The very Full Bench decision in Perumal Chettiar v. Kamakshi Ammal I.L.R. (1938) Mad. 933 : (1938) 2 M.L.J. 189 (F.B.), referred to by the learned Subordinate Judge, clearly shows that the decision will not apply, where a promissory note has been given in respect of an antecedent debt. Leach, C.J., says:
Vasanji Navji And Co. vs K.P.C. Spinners And Ors. on 6 January, 1982
In the case in Perumal Chettiar v. Kamakshi Ammal, AIR 1938 Mad 785 a claim had been made to recover the original debt in respect of which a promissory note had been given by the debtor which was later found to be not properly stamped. The defence taken in that case was that by execution of the promissory note by the debtor, the debt had been absolutely discharged and the only remedy for the creditor was to enforce the promissory note and not to fall back on the original debt. Leach. C.J. speaking for the Full Bench of five Judges, had expressed the view as follows after referring to the relevant decisions rendered earlier:-
Khitish Chandra Sahu vs Rajkishore Sahu on 22 March, 1979
15. The matter was considered by a Full Bench of the Madras High Court in AIR 1938 Mad 785, (Perumal Chettiar v. Kamakshi Ammal), and the majority of the Judges held:
Lothamasu Sambasiva Rao vs Thadwarthi Balakotiah on 14 November, 1972
3. It may be necessary at the outset to refer to the contentions put forth by the counsel appearing for the petitioner and the counsel appearing for the respondent. Mr. C. N. Babu appearing for the petitioners in C. R. P. No. 255/65, relying upon the decision in Pithi Reddy v. Velayudasivan, ( 1885-1887 ) ILR 10 Mad 94 and Perumal Chettiar's case, ILR ( 1938 ) Mad 933 = ( AIR 1938 Mad 785 ( FB ) ) contended that a plaintiff cannot recover money lent on a unstamped or an insufficiently stamped promissory note apart from the note in view of the bar of Section 35 of the Stamp Act and Section 91 of the Evidence Act. It is further contended by him that there is no presumption, when the lending of the money and the execution of a promissory note are contemporaneous that the promissory note operates as a conditional payment or a collateral security so as to say that the real contract is different from what is embodied in the promissory note and thus bypass the provisions of Section 91 of the Evidence Act.
Chuni Lal Manga vs Mangat Ram on 13 May, 1975
; Perumal Chettiar v. Kamakshi Ammal (A.I.R. 1938 Mad 785); Salimunnisa Begum v. Abdul Qayyum Ansari (A.I.R. 1956 Hyd. 32). In the last mentioned case it was pointed out that the suit can be dismissed only if the amount was taken in discharge of the debt.
Appavoo Nadar vs Chellian Nadar And Ors. on 18 April, 1985
In support of this submission, learned Counsel relies on the following observation of Varadachariar, J. in a Full Bench decision of this Court in Perumal v. Kamakshi (1938) 2 M.L.J.189 : I.L.R. (1938) Mad.933 : 48 L.W.220 : A.I.R. 1938 Madras 785:
Contract Act
's view in Perumal Chettiar v.
Kamakshi Ammal", answered the question in the nega-
tive, while the Allahabad High Court in an earlier deci-
sion' and the Calcutta High Court'? have answered it in
the aflirmative. We think that the former view is too nar-
row and the latter one should be accepted. This will neces-
sitate a change in the language of the section.
Ganga Ram vs Keshava Deo And Anr. on 17 May, 1958
14. The matter was considered in Perumal Chettiar v. Kamakshi Ammal, AIR 1938 Mad 785, by the Full Bench of the Madras High Court, and the majority of the Judges held --