JUDGMENT NAIN J.-This is an appeal by the original plaintiffs against the judgment dated October 22, 1962 of the learned Civil Judge, S. D , Sholapur, dismissing the plaintiffs suit for recovery of Rs. 33,909.94. 2. The plaintiffs instituted the suit for recovery of the said amount, interest and costs The plaintiffs area partnership firm and it has been proved that they were registered tinder the Indian Partnership Act, 1932. Defendants No. 1 are also a partnership firm. Defendant No- 2 is an admitted partner in the said firm. He is the person who executed the agreement, Exh. 42, which is the subject-matter of this litigation Defendants No, 3, 4 and 5 have denied that they were partners in the fit m of defendants No 1 at the time of the accrual of the cause of action. 3. The agreement, Exh. 42, which is the subject-matter of this litigation was executed on October 25, 1957. Thereby the plaintiffs advanced to defendants No. 1 a sum of Rs. 58,000. Defendants No. I contracted to sell to the plaintiffs 48,000 bundles of bidis at Rs 2-12-0 per bundle. The price of these 48,000 bundles worked out at the agreed rate to Rs. 1,32,000. The bidis were to be supplied within a period of five years from the date of the agreement in a particular proportion every month. It was provided that if defendants No.1 commi1ted default in supplying bidis, the balance amount then remaining out of Rs. 1,32,000 would be recoverable by the plaintiffs from defendants No. 10 The agreement also provided that for the amount due to the plaintiffs there would be a charge on the to mark label of the bidis under which trade-mark defendants No.1 marketed their goods. 4. Upto June 29, 1961, defendants No. 1 delivered to the plaintiffs 35,300 bundles of bidis The plaintiffs alleged that defendants No. 1 failed to deliver the remaining quantity. Defendants. No. 1 alleged that they had delivered 35,600 bundles but were unable to prove the delivery of the difference of 300 bundles. These bidis were of the value of Rs. 98,925.06. If this amount is deducted out of Rs. 1,32,000 we get the figure of the claim of the plaintiffs in the suit of Rs. 33,909.04. This amount the plaintiffs claimed from defendants No. 1 in terms of the agreement Exh. 42. 5. These bidis were of the value of Rs. 98,925.06. If this amount is deducted out of Rs. 1,32,000 we get the figure of the claim of the plaintiffs in the suit of Rs. 33,909.04. This amount the plaintiffs claimed from defendants No. 1 in terms of the agreement Exh. 42. 5. Defendant No. 2 died on December 18, 1961 and defendants No.2(A) to 2 (L) were; joined as his heirs and legal representatives. Defendants No. 2(K) and 2 (L) denied that they were the heirs and legal representatives of defendant No.2. 6. In the written statement defendants No. 1 contended that the agreement, Exh. 42, was brought about by undue influence, coercion and fraud, that the amount of Rs. 58,000 was advanced as a loan by the plaintiffs to defendants No. 1 at an exorbitant rate of interest, that the transaction Wall governed by the Bombay Money-lenders Act, 1946, and that defendants No. 1 were only liable to pay interest at 9 percent per annum. They further. contended that the plaintiffs had been over paid and that the plaintiffs form was not registered under; the Im1ian Partnership Act, 1932, and therefore the suit was not maintainable. They also contended that, Exh. 42, was a bond and was not sufficiently stamped and was then fore no admissible in evidence. 7. The trial Court held that defendants Nos. 3 to 5 were not partners in the firm of defendants No. L The trial Court also held that the agreement Exh. 42 was a bond and was not properly stamped. It, however, appears that the said agreement was admitted in evidence, marked as an exhibit and referred to in the examination-in-chief and cross-examination. The trial Court further held that the agreement was not brought about by undue influence and was not void. The trial Court also held that the transaction embodied in the agreement, Exh. 42, was a money-lending transaction and was an un Conscionable and. usurious bargain. In the result, the trial Court dispraised the plaintiffs suit with costs. The plaintiffs have come in appeal against the said decision. 8. The trial Court also held that the transaction embodied in the agreement, Exh. 42, was a money-lending transaction and was an un Conscionable and. usurious bargain. In the result, the trial Court dispraised the plaintiffs suit with costs. The plaintiffs have come in appeal against the said decision. 8. The first contention taken before us by Mr Gurnaste appearing for the plaintiffs is that the suit transaction is not hit by any of the provisions of the Bombay Money lenders Act and that even the provision of section 25 of the said Act limiting the rate of interest does not apply to it. He contended that the transaction was purely a transaction for sale of bidis and advance payment made towards the price. He, therefore, contended that the plaintiffs suit has been wrongly dismissed of this ground. 9. In order to appreciate this contention it is necessary to refer to a few provisions of the Bombay Money-Lenders Act. Section 2(6) of the Bombay Money-lenders Act, 1946 defines "interest" and provides that interest includes any sum, by whatsoever name called, in excess of the principal paid or payable to a money-lender in consideration of or otherwise in respect of a loan, but does not include the types of transactions enumerated In the said section. One of the kinds of loan excepted from the said section is as loan to a trader except for the purposes of sections 23. and 25. Section 2 (9) (g) provides that sections 23 and 25 will be applicable to loans even if they were to traders. Although the learned trial Judge has referred in his judgment to section 23, in our opinion section 23 has no application because in the suit no amount of interest which is higher than the amount of loan has been claimed. But it is dear that Section 25 would apply, if we hold that the amount of Rs. 58,000 advanced by the plaintiffs to defendants No.1 was a loan and the difference between Rs. 1,32,000 and Rs. 58,000 was interest and the limitation on rates of interest prescribed by Section 25 would be applicable to the said transaction. But it is dear that Section 25 would apply, if we hold that the amount of Rs. 58,000 advanced by the plaintiffs to defendants No.1 was a loan and the difference between Rs. 1,32,000 and Rs. 58,000 was interest and the limitation on rates of interest prescribed by Section 25 would be applicable to the said transaction. Section 25 of the Bombay Money-lenders Act, 1946, provides that the State Government may from time to time by notification in the Official Gazette fix the maximum rates of interest for any local area or class of business of money-lending in respect of secured and unsecured loans. It is not in dispute that at the date of the suit transaction the rates of interest prescribed under section 25 were 12 percent per annum for unsecured loans and 9 per cent per annum for secured loans . 10. We must now turn to the agreement, Exh. 42, for its construction so as to decide whether the dominant Intention of the said agreement was to advance a loan by the plaintiffs to defendants No. 1 on interest. II. The agreement, Exh. 42, is dated October 25, 1957. It recites that the plaintiffs as well as defendants No.1 were both manufacturers of and traders in bidis. This recital reflects the anxiety of the plaintiffs to get out of the provisions of the Bombay Money-leaders Act and the definition of the word "loan". It also recites that defendants No.1 on the date of the agreement received from the plaintiffs Rs, 58,000 and in lieu thereof defendants No, 1 had agreed to repay the said amount with profit by supplying the goods described in the agreement. We have later to see whether this profit was to secure payment of interest and whether the supply of goods was repayment in kind and, if so, whether repayment in kind would not fall in the definition of loan. Clause t2) of the agreement provides that the prevalent wholesale rate of bidis at the time of agreement was Rs. 2-12-0 per bundle and that the amount of Rs 1,32,000 repayable by defendants No. 1 to the plaintiffs was worked out at that rate for 48,000 bundles deliverable within Ii period of five years. Clause (4) of the agreement provides that bidis of the value of Rs. 26,400 were the be supplied every year, out of which Rs. 2-12-0 per bundle and that the amount of Rs 1,32,000 repayable by defendants No. 1 to the plaintiffs was worked out at that rate for 48,000 bundles deliverable within Ii period of five years. Clause (4) of the agreement provides that bidis of the value of Rs. 26,400 were the be supplied every year, out of which Rs. 11 ,600 represented the principal and Rs. 14,800 were profits. This clause also provides, that in this way within a period of five year-, defendants No.1 had agreed to repay the principal amount of Rs. 58,000 received from the plaintiffs and that Rs. 74,000 were the amount profits. Clause (9) provides that if the rate of bidis went down below Rs 2-12-0 per bundle defendants No. 1 would supply bidis at the lower market rate then prevailing and make up the total payment of Rs. 1,32,000. Neither this clause nor any other clause of the agreement provides that in Case the market rate went up, the bidis would be supplied at the higher market rate and consequently a smaller quantity", auld have to be supplied to make up the amount of Rs, 1,32,000. In other words the agreement provides for an escalation down of the market rate and not an escalation upwards. We might here comment on the anxiety of the plaintiffs to secure the mij1imum payment of Rs. 1,32,000 even if the market rate went down. In case the market rate went up the plaintiffs would have been repaid even more that Rs. 1,32,000. Clause (7) of the agreement provides that if defendants No. I committed a breach of the agreement, the plaintiffs would be entitled to recover from defendants No.1 the amount of Rs. 1,32,000 after deducting there from the price of the bidis delivered. This clause provides for the mode of recovery through Court but we are not concerned with the same. This clause uses the expression "after deducting the amount paid by me,(defendants No 1) towards the repayment of the aforesaid amount of Rs. 1,32,000" (words in bracket and italics supplied). Clause (8) of the agreement provides firstly that unless the agreement was fulfilled defendants No. 1 would not alienate or dispose of moveable and immoveable property or encumber the same; and secondly, the plaintiffs would have a charge on the bidi trade mark used by defendants No. 1. 1,32,000" (words in bracket and italics supplied). Clause (8) of the agreement provides firstly that unless the agreement was fulfilled defendants No. 1 would not alienate or dispose of moveable and immoveable property or encumber the same; and secondly, the plaintiffs would have a charge on the bidi trade mark used by defendants No. 1. This clause would show the anxiety of the plaintiffs to secure themselves for the advances made by them to defendants No. 1. 12. The anxiety of the plaintiffs to get out of the definition of the word ‘loan’ in, and the provisions of, the Bombay Moi1ey·lende.s Act, the provisions for repayment of Rs. 1,32,000 in lieu of Rs 58,000 and the attempt to describe the difference as profit the provision for escalation down of the price and not for escalation upwards, the anxiety to secure at least Rs. 1,32,000 and, if possible, a larger amount, provision for recovery of the balance of Rs. 1,32,000 in case of short deliveries, ) reference to the value of goods delivered as amount paid, securing the repayment of amount by negative covenant against alienation of property and by creating charge on trade mark would tend to show that the dominant purpose of the agreement, Exh 42, is to secure the repayment of a loan advanced with usurious interest and not to secure sale of goods. 13. It would also appear to us from the terms of the agreement set out and discussed hereinabove that the difference of Rs. 74,000 between the amount of advance, viz. Rs. 58,000 and the amount repayable by defendants No. 1 to the plaintiff and which has been described in the agreement as profit is nothing other than interest. The definition of the word interest in sub-section (6) of section 2 of the Bombay Money-lenders Act provides that interest includes any sum by whatsoever name called. Mr. Gumaste for the plaintiffs, contended that what defendants No. I were to give was bidia of the value of Rs 74,000 and not money. The amount of payment in excess of advance was not a sum and was therefore not interest. It, however, appears to us that the amount repayable is fixed in money and is a sum, It may be that the plaintiffs were expecting goods at ascertainable prices in repayment of the sum. The amount of payment in excess of advance was not a sum and was therefore not interest. It, however, appears to us that the amount repayable is fixed in money and is a sum, It may be that the plaintiffs were expecting goods at ascertainable prices in repayment of the sum. That, however, makes no difference to the fact that what was to be repaid was a particular sum of money. This is more so because the plaintiffs were not taking any risk even on account of a fall in prices. If the prices went down they were to get larger quantity of goods. The plaintiffs, however, provided a benefit to themselves by not giving any advantage to defendants No.1 if the prices went up. In case of sale of goods only price is charged and there is no question of charging any profit by the buyer to the seller. There is no explanation from the plaintiffs as to what this profit represented. To us it is clear that the profit represented nothing other than interest. We have, therefore, come to the conclusion that the amount of Rs. 74,000 called profit in the agreement was nothing other than interest. 14. Mr. Gumaste also contended that the definition of the word loan in sub-section (9) of section 2 of the Bombay Money-lenders Act meant an advance at interest whether of money or in kind. He. contended that while advance could be in kind the repayment could not be in kind. This argument is, however, based on the assumption that the . repayment was in kind In this case the repayment is provided for in money, the amount of Rs. 74,000 is specified. It is only repayable by sale of bidis at particular prices and in case of breach the balance is payable in money. This would, therefore, not make the payment not in money. Repayment in money or in moneys worth at ascertainable prices is repayment of a loan. 15. Mr. Gumaste contended that the agreement itself recited and there was no dispute about the fact that both the parties, viz. the plaintiffs on the ·one hand and defendants No. I on the other, were manufacturers of and traders in bidis and the Bombay Money-lenders Act would, therefore, have no application. This argument could be correct except for sections 23 and 25 of the Bombay Money-lenders Act. the plaintiffs on the ·one hand and defendants No. I on the other, were manufacturers of and traders in bidis and the Bombay Money-lenders Act would, therefore, have no application. This argument could be correct except for sections 23 and 25 of the Bombay Money-lenders Act. We are not concerned with section 23. Section 2 (9) (g) expressly provides that sections 23 and 25 will be applicable to loans even if they were to a trader. Section 25 would, therefore, be applicable to the suit transaction and this section provides maximum rate of interest chargeable for secured and unsecured loans. This rate at the relevant time was 9 percent per annum for secured loans and 12 percent per annum for unsecured loans. 16. A Division Bench of the Bombay High Court sitting at Nagpur held in Satyanaravan Hansraj Agrawal v. M. C. Wardha1 that in construing a document one has to look at the dominant intention of the tram action. Mr. Gumaste contended that on a true construction of the agreement, exh 42, the dominant intention was sale of goods and not advancement of a loan and payment of interest. We have, however, discussed the term~ of the agreement itself and, in our opinion, the dominant intention of the transaction is to advance a loan and to secure its repayment along with a high rate of interest. The sale of bidis might have been mutually beneficial to both the parties but the dominant intention was not an agreement of sale but an agreement for repayment of loan with interest. It may also have been the intention of the parties to give it a colour of sale agreement so as to take it out of the operation of the Bombay Money-lenders Act. We have, however, to see the true intention of the transaction and as we have stated above it is clear to us that the nature of the transaction is money-lending transaction. However, no other provision of the Bombay Money-lenders Act, 1946, will apply to it except the two sections referred to above in view of the fact that defendants No. 1 are traders. 17. Mr. However, no other provision of the Bombay Money-lenders Act, 1946, will apply to it except the two sections referred to above in view of the fact that defendants No. 1 are traders. 17. Mr. Gumaste invited our attention to the judgment of a Division Bench of this Court reported in Suleman Ahmed Umer v. Abdulla Rahimtulla2, which brings out a distinction between a deposit and a loan for the purpose of Articles 57, 59 and 60 of the Indian Limitation Act, 1908. There the question was whether the amount advanced was a deposit repayable on demand or a loan which must be repaid within 3 years of the time when it was repayable. In our opinion, this judgment is totally irrelevant for the purposes of our case. 18. Mr. Gumaste also invited our attention to the definition of loan in section 2 (2) of the Usurious Loans Act, 1918 (Act X of 1918) which provides that a loan means a loan whether of money or in kind and includes any transaction which is, in the opinion of the Court, in substance a loan. In this case the loan is of money. The Usurious Loans Act, 1918 gives a wider definition and provides that if a tram act ion is in the opinion of the Court in substance of loan, it is a loan. In this case we have already held that in our opinion the transaction was in substance a loan and therefore the said transaction would be· a loan even under the Usurious Loans Act, 1918. We are, however, concerned with the definition of the word loan in the Bombay Money-lenders Act and have come to the conclusion that the suit transaction was one of a loan advanced within that definition. 19. Mr. Gumaste also cited to us the judgment of the Supreme Court in Shree Ram Mills v. Commr. of E.P.T.S, where it has been held that a loan imports a positive act of lending coupled with an acceptance by the other side of the money as a loan. We have no quarrel with the proposition laid down in this judgment and we are bound by it. But as we have already shown that this was a positive act of lending of Rs. 58,000 and it was accepted by defendants No. 1 as a loan, the transaction is a transaction of "loan" within the meaning of this definition. We have no quarrel with the proposition laid down in this judgment and we are bound by it. But as we have already shown that this was a positive act of lending of Rs. 58,000 and it was accepted by defendants No. 1 as a loan, the transaction is a transaction of "loan" within the meaning of this definition. This is apart from the fact that the Supreme Court was construing the word loan in a case arising under the Excess Profits Tax Act, 19 W and not as defined under the Bombay Money-lenders Act, 1946. 20. Mr. Gumaste also cited a judgment of the Privy Council in Beninson v. Shiber4 but as we find that it has no application to the facts of the case before us we do not consider it necessary to discuss it. 21. Mr. Gumaste also took us through the evidence of the Managing Partner of the plaintiffs and a representative of the firm of defendants No.1. In his evidence the Managing Partner of the plaintiffs has emphasised the fact that he is a bidi manufacturer and. trader and so were defendants No. I and that the plaintiffs were no~ money-lenders, whereas the representative of defendants No. I has qeposed that this was intended to be a transaction of a loan and that the plaintiff; were demanding interest at 24 per cent. per annum. These are the rival contentions in the evidence, but we think that the agreement has to be construed by its own terms and what we have held is on the construction of the agreement, Exh. 42, itself rather than on the rival contentions of the parties in the evidence. 22. The learned trial Judge held that the agreement, Exh.42, was a bond, within the meaning of section 2 (c) or the Indian Stamp Act and was liable to be stamped with an ad valorem stamp duty due under Article 15. We, however, find that the document had already been exhibited and used at the trial. Under section 35 of the Indian Stamp Act once a document is so admitted in evidence and used it cannot be thereafter questioned at any stage of the same proceedings or even in appeal. We, however, find that the document had already been exhibited and used at the trial. Under section 35 of the Indian Stamp Act once a document is so admitted in evidence and used it cannot be thereafter questioned at any stage of the same proceedings or even in appeal. We cannot therefore hold that it was open to the learned Judge to hold in the judgment that the instrument was inadmissible in evidence once it had been marked as an exhibit and admitted in evidence. The Supreme Court has also so held in the case of Javer Ohand v. Pukhraj Surana5. 23. We asked Mr. Gumaste whether if interest was calculated on Rs.53,000 even at 12 per cent per annum which was the notified rate for unsecured loans at the time of agreement, any amount would be due by defendants No. 1 to the plaintiffs. He, however, stated that in that event nothing would be found due to the plaintiffs from defendants No.1. There is, therefore, no question of giving a decree to the plaintiffs for any amount. 25.The appeal, therefore, fails and is dismissed with costs. 25. Mr. Gumaste made an oral application that in case we decide against the plaintiffs, we should grant to them leave to appeal to the Supreme Court. The amount of the value of the subject-matter in dispute is undoubtedly over Rs. 20,000 and the case turns on the interpretation of the Bombay Money-lenders Act, 1946, and construction of document, Exh. 42. It appears that the case is a fit one to appeal to the Supreme Court of India. We, therefore, grant a certificate to the plaintiffs under Articles 133 (1) (a) and (c) of the Constitution of India: Appeal dismissed.