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2006 DIGILAW 278 (MAD)

B. Rajamanickam v. R. Rathinambal

2006-02-07

C.NAGAPPAN

body2006
Judgment :- (Civil Revision Petition is filed under Article 227 of the Constitution of India against the order dated 6.12.2004 made in Memo dated 13.7.2004 in O.S. No. 192 of 2001 on the file of District Munsif, Tiruchengode.) The petitioner has sought for setting aside the order dated 6.12.2004 made in Memo dated 13.7.2004 in O.S.No.192 of 2001 on the file of District Munsif, Tiruchengode. The revision petitioner is the defendant in the suit. 2. The respondent filed the suit against the petitioner herein seeking for recovery of a sum of Rs.13,120/- with interest and costs. During the trial, before marking the Plaint document No.1, the petitioner herein/defendant filed a memo stating that it cannot be marked as exhibit as per Article 13 of the Indian Stamp Act and also under Section 35 of the Act even on payment of stamp duty penalty and the Trial Court, after hearing both sides, held that Plaint document No.1 is only a receipt and not a promissory note and rejected the memo. Challenging the same, the defendant has preferred the present revision. 3. The learned counsel for the petitioner contends that under the terms of Plaint document No.1, repayment could be demanded only after a period of six months and the instrument has to be treated as promissory note when payable otherwise than on demand and the stamp duty is payable under Article 49(b) of the Indian Stamp Act and it cannot be construed as a receipt, since there is no acknowledgment of prior debt and hence the impugned order is liable to be set aside. In support of his contention, the learned counsel relies on a decision of the Division Bench of this Court in S.AMEER v. M/s.VIVEK ENTERPRISES ( (2005) 1 M.L.J. 85 ), in which, it is held that the suit claim based on the insufficiently stamped promissory note is unsustainable. 4. Per contra, the learned counsel for the respondent contends that Plaint document No.1 is only a receipt containing the terms on which the amount is to be returned and there is no unconditional undertaking to pay the money and hence it is not a promissory note. In support of his contention, the learned counsel relied on the following decisions. 4. Per contra, the learned counsel for the respondent contends that Plaint document No.1 is only a receipt containing the terms on which the amount is to be returned and there is no unconditional undertaking to pay the money and hence it is not a promissory note. In support of his contention, the learned counsel relied on the following decisions. i) In VAIDINATHA CHETTIAR AND OTHERS v. THIRUMALAI REDDYAR (A.I.R. 1934 Madras 220), a learned single Judge of this Court held that an instrument which contains the words "I am liable to pay" without any undertaking to pay is not a promissory note, following earlier decision of this Court. ii) The Privy Council in the decision in MOHAMMAD AKBAR KHAN v. ATTAR SINGH AND OTHERS (A.I.R. 1936 Privy Council 171) has considered the document containing the following terms: "This (one) receipt is hereby executed by H and A, residents of Hoti, for Rs.43,900, half of which amount comes to Rs.21,950, received from the firm of L, for and on behalf of M of Hoti. This amount to be payable after two years. Interest at the rate of Rs.5.4.0 per cent per year to be charged. Dated 1st April 1917. Stamp has been duly affixed" and held that the document was not a promissory note but was merely a receipt containing the terms of which the amount was to be refunded and being primarily a receipt, even if coupled with the promise to pay, it was not a promissory note. iii) The Supreme Court in the decision in V.E.A.ANNAMALAI CHETTIAR AND ANOTHER v. S.V.V.S.VEERAPPA CHETTIAR AND OTHERS ( AIR 1956 S.C. 12 ) has held that even though the transaction was a transaction of deposit, the deposit can be coupled with an agreement that it would be payable on demand and the transaction of deposit cannot be thereby converted into a transaction of loan and the words "we shall pay the said sum" cannot convert the document into a promissory note. iv) A Division Bench of this Court in the decision in A.RANGASWAMY v. K.GOVINDASWAMY NAIDU AND ANOTHER ( 1961 (II) MLJ 122 ) has held that an unconditional undertaking to pay a certain sum of money is an indispensable statutory requisite without which no instrument in writing can be a promissory note within the meaning of the Negotiable Instruments Act and words merely acknowledging the liability of the person signing the instrument to pay a certain sum of money may not amount to unconditional undertaking to pay even if it were possible to infer an implied promise to pay on the part of the person signing the instrument. 5. In the context of the settled proposition of law, we have to consider the Plaint document No.1, which reads as follows: "Received From Thirumathi R.Rathinambal W/o.P.S.Subramaniam D.No.6 Pavadi St.11 T.Gode. the sum of Rupees Eight thousand Only as a Deposit repayable after 6 Months with interest at the rate of 24% percent per annum the interest being payable halfyearly or quarterly." This document plainly is a receipt for money containing the terms on which it is to be repaid. There is no unconditional undertaking to pay, which is the essential requirement of the promissory note as defined under Section 4 of the Negotiable Instruments Act. Being primarily a receipt, even if coupled with promise to pay, it is not a promissory note. Even if it is improperly stamped, it can be admitted on payment of the required amount to make up such duty together with penalty as stipulated in the proviso to Section 35 of the Indian Stamp Act. 6. Hence there are no merits in the revision and the same is dismissed. No costs. Connected C.M.P.No.2601 of 2005 is also dismissed.