Research › Search › Judgment

Gauhati High Court · body

2004 DIGILAW 461 (GAU)

Md. Mansur Ali v. Md. Habibur Rahman

2004-08-09

B.BISWAS

body2004
JUDGMENT D. Biswas, J. 1. Heard Mr. A. Wahed, the learned counsel for the appellant. None appeared for the respondent despite adequate opportunities given on different occasions. 2. This appeal is directed against the concurrent findings of the learned Courts below. The respondent Md. Habibur Rahman as plaintiff filed Money Suit No. 6/94 in the Court of the Munsiff No. 2 at Mangaldoi for recovery of Rs. 2,750 on the basis of a pro-note executed by the defendant on 21.5.1992. The learned Munsiff decreed the suit in favour of the plaintiff. The judgment and decree passed by the learned Munsiff has been confirmed by the learned first appellate Court. This appeal has been preferred against the said judgments for hearing on the following substantial questions of law :- (A) Whether the unstamped pro-note admitted in evidence without objection can be acted upon by the Courts below? (B) Whether the judgments of the learned Courts below are perverse in view of misinterpretation of the scope of Section, 35 and 36 of the Indian Stamp Act ? (C) Whether presumption under Section 118 of the Negotiable Instruments Act can be drawn in a case of unstamped pro-note for the purpose of decreeing the suit ? 3. The aforesaid document was admitted in evidence and tendered as Ext.1 without any objection from the appellant-defendant. The admissibility of the document was challenged on the ground that the pro-note could not be acted upon as it was not properly stamped. The objection was founded on the proviso of Section 35 of the Indian Stamp Act, 1899. The learned Courts below rejected the objection on the ground that the document was tendered in evidence without any objection and, as such, this question cannot be raised either before the trial Court or before the appellate Court. 4. Mr. Wahed, the learned counsel for the appellant submitted that there is a bar on the promissory note being admitted in evidence unless it is properly stamped. With reference to proviso (a) to Section 35, Mr. Wahed, submitted that a document not properly stamped may be admitted in evidence on payment of duty after it is impounded except a bill of exchange or a promissory note. In support of this contention, Mr. Wahed, relied upon a decision of this Court in Jatindra Mohan Deb Laskar v. Khara Singh AIR 1964 Gau 138. According to Mr. Wahed, submitted that a document not properly stamped may be admitted in evidence on payment of duty after it is impounded except a bill of exchange or a promissory note. In support of this contention, Mr. Wahed, relied upon a decision of this Court in Jatindra Mohan Deb Laskar v. Khara Singh AIR 1964 Gau 138. According to Mr. Wahed, a pro-note cannot be admitted in evidence on payment of penalty. The provision for impounding the document is not applicable in case of a pro-note. 5. The plaint clearly shows that the suit was for recovery of amount on the basis of a pro-note. It is in this context the provisions of Section 35 and Section 36 of the Indian Stamp Act, 1899 will have to be looked into. The first appellate Court, while rejecting the objection raised with regard to the admissibility of the pro-note relied upon the decisions in Samurailatpam Jugeswar Sharma v. Krishna Kumar Sharma, Javer Chand and Ors. v. Pukhraj Surana, [1962] 2 SCR 333 and Ram Rattan (dead) by legal representatives v.Bajrang Lal and Ors., [1978] 3 SCR 963. 6. The decision in Krishna, Kumar (supra) was based on the decision of the Hon'ble Supreme Court in Javer Chand (supra). In this judgment, the Hon'ble Supreme Court held that a party challenging admissibility of a document on the ground that a deed has not been stamped or has not been properly stamped has to be alert that the document is not admitted in evidence by the Court. Once the document is marked as an exhibit and has been used in examination and cross-examination, the provisions of Section 36 of the Act of 1899 will operate and, in consequence thereof, neither the trial Court nor the appellate Court would be competent to re-open the matter. This decision of the Supreme Court has also been reiterated in Ram Rattan (supra). It may be mentioned here that in both the cases the Hon'ble Supreme Court was not dealing with the question of admissibility of a pro-note not properly stamped. The ratio available in the aforesaid two decisions was considered by this Court in Jatindra Mohan Dev Laskar (supra). The learned Single Judge of this Court held that the decisions of the Hon'ble Supreme Court in the aforesaid two judgments are not applicable in a suit based on a pro-note improperly stamped. The ratio available in the aforesaid two decisions was considered by this Court in Jatindra Mohan Dev Laskar (supra). The learned Single Judge of this Court held that the decisions of the Hon'ble Supreme Court in the aforesaid two judgments are not applicable in a suit based on a pro-note improperly stamped. The learned Single Judge with reference to proviso (a) to Section 35 held as follows :- "It is clear from the above provision that a promissory note which is insufficiently stamped cannot be impounded and penalty collected as it could be done in respect of other documents. In so far as promissory note is concerned, if it is insufficiently stamped, the main portion of Section 35 comes into operation and there is no escaping the application of that section, and under it the promissory note in question could not be used or received in evidence for any purpose. The section prohibits not only the receiving in evidence but also the acting upon that document." 7. The learned Single Judge while dealing with the provisions of Section 36 observed as follows : "Where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped." The difference in the language between Section 35 and Section 36as well as the nature of these provisions should be noticed. While Section 35is a substantive provision, Section 36 is merely procedural. While Section 35prohibits without any exception or condition to both the reception in evidence as well as to the acting upon on the document, Section 36 merely deals with the question of the admission in evidence being called into question. Section36 does not obviously deal with the question of receiving or making use of the document as evidence, or with the acting upon that document. Section36 does not obviously deal with the question of receiving or making use of the document as evidence, or with the acting upon that document. The estoppel or the bar contained in Section 36 merely operates against the party who had failed to object, whereas Section 35 bars not only the party affected but all the parties as well as the Court dealing with the matter if it were the intention of the Legislature that Section 36 should render Section 35 nugatory, nothing could have been simpler for the legislature than to have laid down in Section36 that notwithstanding what is contained in Section 35, when the contingency laid down in Section 36 comes to exist, Section 36 would prevail and Section35 need not be regarded. The very fact that Section 36 makes no reference to Section 35 or to the bar contained in it to the acting upon the document leads one to the inevitable conclusion that there is no conflict between the two sections. All that Section 36 contains is a rule of procedure which prohibits a party who sleeps over his rights, to wake up and raise objection. If a document is marked as an exhibit and found to be insufficiently stamped subsequently, it can be impounded by the Court or by the competent revenue authorities and penalty levied and recovered, That is why Section 36 refers to Section 61, and the two sections should be read together Section 61contemplates the levying of the penalty and provides for impounding the document. Obviously, Section 61 could only apply to those documents in respect of which the penalty can be levied under Section 35, and a promissory note is not one of those documents, as the 1st proviso to Section 35 expressly excludes a promissory note. It is this reason that necessitates and enjoins, ipso facto, that the suits based on promissory notes which are insufficiently stamped, should be dismissed." 8. The discussion above, with reference to the proviso to Section 35, clearly shows that the provisions of Section 35 is a substantive provision while the provision of Section 36 is merely procedural and, in this context, the learned Single Judge was of the view that admissibility of a pro-note not properly stamped or insufficiently stamped can be raised at any stage of the proceedings. This Court has no reason to disagree with this proposition. This Court has no reason to disagree with this proposition. Although an improperly stamped pro-note is admitted in evidence without objection, yet, it cannot be acted upon by the Court in decreeing a suit based on a pro-note in view of the provisions in Section 35 of the Indian Stamp Act. The provisions of Section 36 will not have any overriding effect in view of the exclusion of a pro-note in Section 35. Consequently, the provisions of Section 118 of the Negotiable Instruments Act, 1881 will be of no significance in a suit based on a pro-note not properly stamped or stamped improperly. 9. In the result, the appeal is allowed and the judgment and decree passed by the learned Courts below are hereby set aside. The Money Suit No. 6/94 is dismissed. 10. The parties are directed to bear their respective costs.