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1978 DIGILAW 647 (MP)

Padamchand v. Shrinath

1978-09-01

H.G.MISHRA

body1978
ORDER Mishra, J. - 1. This is a revision directed against an order dated 8-9-74 whereby the suit Hundies have been held to be inadmissible for want of proper stamps. 2. The facts essential for purposes of this revision are as under:- (a) that the plaintiff-applicant has instituted a suit for recovery of the amount advanced on the basis of Hundies renewed on 4-4-70 for Rs. 2000 and on 7-4-70. for Rs. 1200. (b) The suit was brought for recovery of the amount of Rs. 3200 as principal and Rs. 576 as interest, in all Rs.3776. (c) The defendant denied the claim of the plaintiff applicant and inter alia took a plea that the Hundies are executed on Insufficient stamps, therefore they are not admissible In evidence and no suit lies on the basis thereof. (d) After framing of the issues the evidence of the plaintiff was started and when the suit Hundies were being tendered in evidence, the defendants objected to their admissibility in evidence on the ground that they are insufficiently stamped. This objection bas been upheld by the impugned order, hence this revision. 3. Shri K.N. Gupta, learned counsel for the plaintiff-applicant, has contended that the impugned Bundies are 'Shahjog' Hundies and that in fact they need not be executed on any stamp being Hundies payable on demand. Therefore, the impugned order is illegal and without jurisdiction. 4. None appeared on behalf of the defendants-non- applicants to oppose this revision. 5. After having heard the learned counsel for the applicant, I am of the opinion that this revision deserves to be allowed. 6. The Hundies in question are 'Shahjog' Hundies and as Such it is not an ordinary Hundi to which the Negotiable Instrument Act, 1881, applies. A Full Bench of this Court in a case reported in 1943 N.L.J. has held that;- "A Shah Jog Hundi which is payable to the respectable holder according to the practice in connection with Hundis is not an ordinary hundi to which the Negotiable Instruments Act applies. It is not covered by the definition of negotiable instrument in section 13 1) of that Act although many of the incidents which apply to these hundis are the same as those which apply to instruments governed by the Negotiable Instruments Act that is because of mercantile usage and custom and not because of the Act......'" 7. It is not covered by the definition of negotiable instrument in section 13 1) of that Act although many of the incidents which apply to these hundis are the same as those which apply to instruments governed by the Negotiable Instruments Act that is because of mercantile usage and custom and not because of the Act......'" 7. So far as the question of such insufficiency of stamps with regard to the provisions of the Indian Stamp Act, 1899, is concerned, the relevant Article prescribing the duty on instruments of Bills of Exchange is Art.13 of Schedule I thereof. Art. 13, as it stood prior to 1-7-1927, ran as under:- Schedule I-Art. l3.-Bills of Exchange "As defined by section. 2(2) not being a bond, Bank note or currency note- (a) were payable on demand, (b) were payable otherwise than on demand, (i) to (iv)... (c) Clause (a) of the aforesaid Art. 13 was omitted by section 5 of the Indian Finance Act, 1927 (Act No.5 of 1927) which came into force w. e. f. 1-7-1927. As a consequence of this omission, Bills of Exchange which were payable on demand ceased to be chargeable with duty, if executed after 1-7-1927. 8. One of the principles governing the Fiscal statutes is that the tax or duty purported to be imposed thereunder must be specifically charged and imposed. Accordingly, those instrument which do not fall in Schedule 1 cannot be regarded to be such documents which need be executed on stamp prescribed thereunder. Accordingly, the Bills of Exchange which is payable on demand, need not be executed on stamp prescribed under Art. 13 of Schedule I of the Indian Stamp Act, 1899. 9. The Hundis in question are Shanjog Hundies and are payable on demand as such they need not be stamped. Accordingly, there is no question of insufficiency of stamps on which they are executed, Even if they would not have been executed on any stamp paper, they would have been still admissible in evidence. 9. The Hundis in question are Shanjog Hundies and are payable on demand as such they need not be stamped. Accordingly, there is no question of insufficiency of stamps on which they are executed, Even if they would not have been executed on any stamp paper, they would have been still admissible in evidence. I am fortified in this view by the ratio of the case reported in 1857 M.P.L.J. SN 188, of a Division Bench of this Court, wherein it was held, "Where the Hundis according to their terms are included within the definition of Bill at Exchange as given in section 5 of the Negotiable instrument Act and they are payable on demand they are excluded from Item No. 13, Schedule- I of the Stamp Act as amended by Act V of 1927. Such Hundis are not liable to stamp duty." 10 Accordingly, the revision deserves to be allowed and is hereby allowed. The impugned order is set aside and it is held that Hundis in question are not insufficiently stamped and are admissible in evidence. Since none appeared to oppose this revision. I make no order as to costs.