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2000 DIGILAW 1021 (MP)

Bhagatram Gandhi v. Mohan Gupta

2000-09-18

A.K.MISHRA

body2000
This revision has been filed by the defendant aggrieved by the order passed by the Additional District Judge, Karera on August 21, 1998 overruling an objection raised by the defendant- petitioner with respect to admissibility of document dated December 14. 1984. It was submitted by the defendant-petitioner that the said document is a 'promissory note' as defined in Section 4 of the Negotiable Instruments Act, 1881. The plaintiff filed the suit for recovery of Rs. 50,000/- together with interest at the rate of 1.5% per month - total amount of Rs. 68,750/-, on the basis of a receipt dated 14.12.l984. The plaintiff has pleaded that he had advanced the money to the defendant on 14.12.1984. There was oral agreement of its return and for satisfaction a receipt was written by the defendant. The objection raised by the defendant-petitioner was contested by the plaintiff-respondent. It was submitted that it was simply an acknowledgment for return of the money advanced. Learned counsel Shri K.K. Lahoti and Shri D.O. Bansal appearing for the petitioner have urged that it is a case where ingredients of promissory note are clearly made out in respect of document dated 14.12.1984 which runs thus: dqthZ fy[k nbZ Hkxrjke xka/kh tq>kyiqj ckfju us eksgu th lqukjhokfju dks gkFk m/kkj y;s :i;k ipkl gtkj vadu 50]000@& flDdk pkyw C;kt ij 1 :i;k 50 iSls ds fglkc ls nsosaxsA fefl Qwlorh 6 lEoar 2041 rkjh[k 14-12-1984A n- Hkxrjke xak/kh 50]000 ¼ipkl gtkj :i;k½ ik;s The learned counsel has also relied on a Full Bench decision of this Court in Sant Singh v. Madandas Panika, ( 1976 JLJ 235 ) which lays down the distinction between a promissory note and a bond. On the other hand, the learned counsel for the plaintiff- respondent contended that essential ingredient of promissory note that the amount is payable on the order is missing from the document dated 14.12. 1984, hence it cannot be termed to be a promissory note. He has pressed into service a Single Judge decision of this Court in Mannalal Nanhelal v. Sitambernath Ramhirdelal, 1961 JLJ 851 = 1961 MPLJ 169 . "Promissory note" has been defined in Section 4 of the Negotiable Instruments Act as under: "4. 1984, hence it cannot be termed to be a promissory note. He has pressed into service a Single Judge decision of this Court in Mannalal Nanhelal v. Sitambernath Ramhirdelal, 1961 JLJ 851 = 1961 MPLJ 169 . "Promissory note" has been defined in Section 4 of the Negotiable Instruments Act as under: "4. 'Promissory note' -- A "promissory note" is an instrument in writing (not being a bank note or a currency-note) containing an un-conditional undertaking, signed by the maker, to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument." One of the essential ingredients, namely, it is payable to the order of a certain person or to the bearer of the instrument is completely missing in respect of the document in question. "Bond" has been defined in Section 2(5) of the Indian Stamp Act, 1899 which reads thus: "(5) 'Bond' includes -. (a) any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be; (b) any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another: and (c) any instrument so attested, whereby a person obliges himself to deliver grain or other agricultural produce to another." The essential ingredients of promissory note are – (1) An unconditional undertaking to pay: (2) The sum should be a sum of money and should be certain: (3) The payment should be to the order of a person who is certain: or to the bearer of the instrument: and (4) The maker should sign it. In the instant case the third requirement i.e. the payment should be to the order of a person, is missing. As one of the essential conditions is missing the document in question cannot be termed as, 'promissory note". It also cannot be said to be a 'bond' as it does not bear attestation by a witness. In the instant case the third requirement i.e. the payment should be to the order of a person, is missing. As one of the essential conditions is missing the document in question cannot be termed as, 'promissory note". It also cannot be said to be a 'bond' as it does not bear attestation by a witness. The essentials of a bond are :- (1) There must be an undertaking to pay; (2) The sum should be a sum of money but not necessarily certain; (3) The payment will be to another person named in the instrument; (4) The maker should sign it; (5) The instrument should be attested by a witness; and (6) It must not be payable to order or bearer. The learned counsel for the respondent has placed reliance on the decision of Mannalal which is proper. In the said case the writing in question was held to be an acknowledgment and not a promissory note. The deed dated 19.3.1952 which was considered in the said case reads thus: ^^Jheku flrEcjukFk nkÅth gky eqdke ekBkxkao fy[kh eUukyky ek-xq-lk- ekBkxkao okys dk jke jke fy[kuk ,slk gS fd vkidk :i;k 3]000 v{kjh rhu gtkj :i;k eSa C;kt ds T;s”B iqUuksa rd ;kus vkt ls nks efgus ikbZ&ikbZ pqdrh dj nqm¡xk Qh lsdMk+ Qh ekg esa 1@& v{kjh ,d :i;k C;kt jgsxkA n % eUUkkyky dqehZ ek-xq- rk % 19-3-1952 bZ- Thus, respectfully following the decision in Mannalal (supra), I have no hesitation to hold that the document in question is an acknowledgment. I find no merit in the revision. The same is accordingly dismissed. The impugned order passed by the trial Court is upheld. The parties are directed to appear before the trial Court on 31st of October, 2000. No fresh notice need be issued by the trial Court. Parties shall bear their own costs of this revision as incurred.