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Cadit quaestio (the question drops)

It has been held by a Full Bench [Maung Chit v. Roshan & Co., 1934 Rang. 389, FB] of the Rangoon High Court, that when a pro-note or bill of exchange is given for a loan prima facie it is given and taken as conditional payment, and not in accord and satisfaction of the debt. If the pro-note or bill of exchange is taken as conditional payment and that term is embodied in the document cadit quaestio [The question drops], but if it is not therein set out the document does not contain all the terms of the agreement upon which the loan was made and Section 91, Evidence Act does not apply. Page, C.J., observed that the lack of unanimity amongst the Courts in india was due to the unfortunate and incorrect’ dictum of Garth, C.J., and more especially to the use of the word ‘then’ in it. The Court held that it does not matter whether the pro-note or bill of exchange was given at the time when the money was handed over to the borrower or subsequently as in either case it is necessary to ascertain the terms of the agreement upon which the loan was made; it is not the time but the terms that matter. Two other Full bench decisions of the same Court also held that the creditor is entitled to sue for the money lent as on the original contract of loan if the pro-note cannot be proved [Maung Kyi v. Ma Mangale, 12 Bur. LT 137], and that by amendment of the plaint if necessary, [Maung Shwe Myat v. Maung Po Sui, 1925 Rang 282 (FB)]. [Section 62, Contract Act].

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