Judgement JUDGEMENT :- This appeal by the plaintiff is from the judgement and decree passed by the Assistant District Judge, Sibsagar, Jorhat, in Money Suit No. 3 of 1564. 2. The suit is for recovery of money. The plaintiffs case is that Defendant No. 1 took a loan of Rs. 12,500/- from him by executing a bond on 14-9-63 and defendant No. 2 stood surety for the said amount. Defendant No. 1 agreed to pay the money in four equal installments, being payable on 14-11-63, 14-1-64, 14-3-64 and 14-5-64 respectively. On the date of execution of the bend defendant No. 1 executed an agreement whereby he promised to execute a deed of simple mortgage to secure the said amount of Rs. 12,500/-, The defendants failed to pay the first installment due on 14-11-63 or to execute the deed of mortgage. The plaintiff, therefore, served a registered notice upon the defendant No. 1 but to no effect. He has therefore, Sled the present suit for Rupees 12,897/- inclusive of interest. 3. The defendants Nos. 1 and 2 have filed a joint written statement. They have admitted the execution of the bond, but denied the receipt of any consideration. They have further pleaded that the suit is not maintainable, being hit by Section 7 of the Assam Money-Lenders Act, 1934 (hereinafter referred to as the Act). Their further defence is that defendant No. 1 is the settlement-holder of Amguri Stone Quarry No. 2 and he entered into a partnership with the plaintiff; that the suit is not maintainable without rendering partnership accounts and dissolution of the partnership. They aver that the bond was executed only to raise the loan for financing the working of the Quarry. They, however, further plead that they were not aware of the contents of the bond. 4. The learned trial Court dismissed the suit holding that the suit was hit by Section 7 of the Act, that there was no passing of any cash consideration of the bond, that there was a partnership business between plaintiff and defendant No. 1, and that the loan was obtained for financing and running the quarry. Hence this appeal by the plaintiff. 5. Hence this appeal by the plaintiff. 5. Shri R.C. Choudhuri, learned Counsel for the appellant, raises the following points before me : (i) That the plaintiff is not a "money lender" as defined by Section 2 of the Act and as such the suit is not bit by Section 7 of the said Act; and (ii) That the learned trial Courts finding that there was no cash consideration of the bond is contrary to the evidence on record. In reply, Dr. M.K. Sarma, learned Counsel for the respondents, controverts the submission of the appellant. He further submits that the bond (Ext. 1) is not admissible in evidence as it has been inadequately stamped. He further submits that the plaintiffs suit is premature. 6. Let us first examine whether Ext. 1 is admissible in evidence and whether the sash consideration of the bond was paid. It, is admitted by both the parties that Ext. 1 is a bond and that the stipulated consideration is Rs. 12,500/- and the stamp fee paid is only Rs. 15/-. It is also conceded by appellants learned Counsel that the document has been inadequately stamped. He, however, submits that on that ground the document should not be discarded, but it may be impounded and the appellant may be directed to pay the deficit stamp fee. 7. Section 35 of the Indian Stamp Act provides; "35. 15/-. It is also conceded by appellants learned Counsel that the document has been inadequately stamped. He, however, submits that on that ground the document should not be discarded, but it may be impounded and the appellant may be directed to pay the deficit stamp fee. 7. Section 35 of the Indian Stamp Act provides; "35. No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duty stamped : Provided that - (a) any such instrument not being an instrument chargeable with a duty not exceeding ten paise only, or a bill of exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion." The above document, therefore, may be impounded and the plaintiff be required to pay the deficient stamp duty and the document be admitted in evidence on payment of the duty. The material portion of Section 33 of the Stamp Act may, also be quoted. "33. Examination and impounding of Instruments. - (J) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of a police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such Instrument is not duly stamped, impound the same. (2) For that purpose every such person shall examine every instrument so charge-able and so produced or coming before him in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India when such instrument was executed or first executed. Provided that - (a) ...... ...... ...... (2) For that purpose every such person shall examine every instrument so charge-able and so produced or coming before him in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India when such instrument was executed or first executed. Provided that - (a) ...... ...... ...... (b) in the case of a Judge of a High Court, the duly of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf. (3) ...... ...... ...... " On an examination of the records It appears that Ex, 1 was an "admitted document" as disclosed by the "list of exhibits" maintained and signed by the trial Court. Order 13, Rule 4 of the Civil Procedure Code provides : "4. Endorsements on documents admitted in evidence. - (1) Subject to the provisions of the next following sub-rule, there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars, namely :- (a) the number and title of the suit, (b) the name of the person producing the document, (c) the date on which it was produced, and (d) a statement of its having been so admitted; and the endorsement shall be signed or initialed by the Judge. (2) ...... ...... ...... " Ext. 1 does not show that the learned trial Judge in terms followed the provision of Order 13, Rule 4, but the Exhibit bears his signature followed by the seal of the Court on the body of the document. Ext. 1 read with the "list of exhibits" maintained and signed by him shows that the provision of law was substantially complied with. Dr. M.K. Sarma draws my attention to the evidence of P.W. 1, who has proved Ext. 1, to show that when the document was proved it was objected to and that the objection has been recorded by the learned Court. The material evidence as recorded by the trial Judge is : "Ext. 1 is (objected) the bond on the basis of which Rashik took the loan". It does not, however, appear on what ground or grounds the objection was raised. The execution of the document has been admitted in the written statement itself. The material evidence as recorded by the trial Judge is : "Ext. 1 is (objected) the bond on the basis of which Rashik took the loan". It does not, however, appear on what ground or grounds the objection was raised. The execution of the document has been admitted in the written statement itself. Whether the objection was on the ground of inadequacy of the stamp fee or for any other ground is not known. If it was on the ground of inadequacy of the stamp fee, it can be obviated by paying the deficit stamp fee. It has not been contended by the learned Counsel for the respondents that the document has violated any provision of the Evidence Act. I, therefore, direct Ext. 1 to be impounded and admitted in evidence on payment of the deficit stamp duty together with necessary penalty as enjoined by proviso (a) to Section 35 of the Stamp Act. 8. The next point for consideration is whether the cash consideration of the bond was paid. The evidence of P.W. 2 (plaintiff) is that defendant No. 1 took a loan of Rs. 12,500/- from him and executed the Ext. 1 after receiving the amount. This has not been challenged in cross-examination. P.W. 1 is a Govt. servant. He knows the plaintiff and the defendants. His material evidence is that defendant No. 1 took a loan of Rupees 12,500/- from the plaintiff and executed Ext. 1. He further deposes that be himself saw the passing of the consideration. P.W. 3 la a petition writer. He says that one Ramesh Neog typed out Ext. 1. He read it over to the defendants hereupon they signed Ext. 1 in his presence. He deposes that the plaintiff made the payment of Rs. 12,500/-. In his presence. The only evidence on this point from the side of the defendants is the evidence of the defendant No. 1 as D.W. 2 and defendant No. 2 as D.W. 3. They have simply denied receipt of the amount from the plaintiff. Learned Counsel for the appellant also takes reliance on Ext. 2 which has been executed by defendant No. 1, it is in Assamese. It was executed on 17-1-64. By this document D.W. 1 has admitted having received Rs. 12,500/- and promised to execute a registered deed of mortgage on 20-1-64. Learned Counsel for the appellant also takes reliance on Ext. 2 which has been executed by defendant No. 1, it is in Assamese. It was executed on 17-1-64. By this document D.W. 1 has admitted having received Rs. 12,500/- and promised to execute a registered deed of mortgage on 20-1-64. On a consideration of the oral evidence of P.W.s 1, 2 and 3 and D.Ws 2 and 3 and Ext. 3, I have no doubt in my mind that defendant No. 1 received cash consideration of Rupees 12,500/- of the bond, Ext. 1. 9. It is contended by Dr. Sarma that Ext. 2 is not a stamped document and therefore not admissible in evidence. He submits that this document is a receipt and therefore is liable to be stamped as such. In my opinion this is not a receipt, but a mere promise to execute a deed of mortgage and not inadmissible in evidence. 10. The next point raised by the respondents is that the suit is premature. This point cannot be entertained in appeal as it was not taken in the written statement, no issue framed and not considered by the learned Court below. 11. The only other question that remains for decision is whether the plaintiff is a "money-lender" within the definition of Section 2(1) of the Act and the suit is hit by Section 7 of the Act. The Act was amended by the Assam Money Lenders (Amendment) Act, 1968 (Assam Act XVIII of 1969), which inter alia, amended the definition of Money-Lender. The transaction having taken place on the 14th of September, 1963, the admitted position is that the definition of Money-Lender before it was amended applies to the facts of the present case. Money-lender before amendment was defined under Section 2(1) of the Act as - "Money-lender means a person who grants a loan". The object of the Act has been stated as "An Act to provide for more effectual control of money-lending in Assam", and the preamble of the Act is : "Whereas it is expedient to make better provision for the control of money-lending and to give additional powers to Courts to deal with money-lenders in Assam; ........... ". The object of the Act has been stated as "An Act to provide for more effectual control of money-lending in Assam", and the preamble of the Act is : "Whereas it is expedient to make better provision for the control of money-lending and to give additional powers to Courts to deal with money-lenders in Assam; ........... ". Section 5 of the Act declared an agreement between a money-lender and a borrower or intending borrower for the payment by the borrower or intending borrower to the money-lender of any sum on account of costs, charges or expenses incidental to or relating to the negotiations for or the granting of the loan or proposed loan, to be illegal. Section 6 enjoins a money-lender to keep accounts in Form I prescribed in the Schedule to Rules framed by the State Government in exercise of powers under Section 14 of the Act. Section 7 creates an obligation on the part of the money-lender to keep accounts of loan advanced by him to the borrower containing (a) the date on which the loan was made, the amount of the principal of the loan and the rate of interest per annum; (b) the amount of any payment already received by the money lender in respect of the loan and the date on which it was made; (c) the amount of every sum due to the moneylender, but unpaid, and the date upon which it became due and the amount of interest accrued due and unpaid in respect of every such sum; and (d) the amount of every sum not yet due which remains outstanding and the date upon which it will become due; and on demand by the borrower, it has been enjoined upon the money-lender, to furnish a copy of the statement of accounts to the borrower signed by the money-lender or his agent and on payment of necessary expenses for the supply of the copy of the statement. Section 11 of the Act prohibits advertisement, by or on behalf of money-lender for an invitation (a) to borrow money from a money-lender; or (b) to enter into any transaction involving the borrowing of money from a money-lender; or (c) to apply to any place with a view to obtaining information or advice as to borrowing any money from a money-lender. Sub-Section (2) of Section 11 prohibits employment of agent or canvasser for the purpose of inviting any person to borrow money or to enter into any transaction involving the borrowing of money from a money-lender. 12. The above provisions of the Act clearly lead to the conclusion that "moneylender" does not mean a person who gives a casual loan to a casual borrower from him, but it means a person whose business is money lending. The above provisions show that the money lender is to maintain, accounts of his loans, furnish copies of the accounts to the borrower; he may employ agent or other person for the above purposes. A casual lender of money is not expected to do all these. 13. My attention has also been drawn to the amended definition of Money Lender which runs : " Money Lender means a person who in the regular course of business advances a loan as defined in this Act and shall include, subject to the provisions of Section 6, the legal representatives and the successors in interest whether by inheritance, assignment or otherwise of the person who advanced the loan and money-lending shall be construed accordingly." This amended-definition has not, in my opinion, brought about any change in the law, but clarified the meaning of Money Lender which was implicit in the expression itself in the original Act. 14. P.W. 2 (the plaintiff) deposes in his evidence that he is not a professional money-lender. His evidence has not been challenged in cross-examination. Defendants in their depositions also did not state that money lending was the business of the plaintiff. Learned Counsel for the respondents before me also has not challenged this position. In the facts and circumstances of this case I have no hesitation to hold that the plaintiff is not a money-lender within the definition of Section 2(1) of the Act. 15. Sub-Section (3) of Section 7 provides that if a money-lender fails, on a demand made by the borrower for furnishing copies of the accounts, to comply within one month of the demand so made without reasonable excuse, he shall not, so long as the default continues, be entitled to sue for or recover any sum due under the contract on account either of principal or interest, and interest shall not be chargeable in respect of the period of the default. It is submitted on behalf of the defendants that as the plaintiff has not complied with this provision of law, the suit was hit by Section 7(3) of Act. But as I have already held that the plaintiff is not a money-lender within the meaning of the Assam Money-Lenders Act, 1934, the Act is not applicable to the present suit, and as such, the suit is not hit by S.7(3) of the Act. The learned Court below was in error in holding to the contrary. The judgment and decree of the learned Court below are therefore set aside. The appeal is allowed with costs, and the suit is decreed with costs. 16. The office will assess the deficit stamp fee together with necessary penalty payable with regard to Ex. 1 within one week from to-day and the appellant thereafter shall pay the amount within one month from the date of notification by the office of the amount assessed as payable. On the appellants failure to pay the amount within the stipulated time, the suit as well as the appeal shall stand dismissed, but without costs. Order accordingly.