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Madhya Pradesh High Court · body

2009 DIGILAW 1042 (MP)

RAM KESHAN DWIVEDI v. ROHNI PRASAD TIWARI

2009-08-27

ARUN MISHRA, SUSHMA SHRIVASTAVA

body2009
Judgment Arun Mishra, J. ( 1. ) Writ petition has been filed as against the interlocutory order dated 20.3.2006 passed by 1st Addl. District Judge, Shahdol in civil suit no.9-B/ 2004 holding the document to be bond and recovery of payment of deficit stamp duty from respondent. ( 2. ) Petitioner has been asked to make the payment of stamp duty and penalty treating the document as bond, hence the instant writ petition has been filed by the plaintiff-petitioner. ( 3. ) The plaintiff has filed the suit for recovery in the sum of Rs.1,65,000/-on the ground that defendant- respondent has obtained sum of Rs. one lac from the petitioner on 23.4.2002. He executed a promissory note to repay the same amount on demand. When the document was tendered in the evidence, application was filed by the defendant u/s151 of CPC as to admissibility of the document in evidence on the ground that it does not bear stamp duty and penalty. ( 4. ) The trial court has held the document to be a bond not a promissory note and has ordered for stamp duty as prescribed under Schedule 1, Article 15 of the Stamp Act together with penalty. It has been held by the trial court that document could be admitted in evidence. The trial court has rejected the application u/s151 of CPC as per order dated 13.10.2006. ( 5. ) Shri Ashish Shroti, learned counsel for the petitioner, has submitted that document is promissory note, it could not be said to be a bond. He has submitted that document has not been attested by any witness, the trial court ought to have seen that promissory note is not necessarily a bond. In absence of attestation by the witness, the document could not have been held to be a bond. The Notary could not be said to be a witness. Petitioners counsel has relied upon a decision of the Apex Court in M.L. Abdul Jabbar Sahib v. H. Venkata Sastri and Sons and others etc., AIR 1969 SC1147. ( 6. ) Shri Mohd. Ali, learned counsel with Shri Vijay Shukla appearing on behalf of respondent-defendant, has submitted that document is a bond. Notary signed the document as a witness, consequently the document could not be said to be promissory note. The order passed by the trial court is proper. ( 7. ( 6. ) Shri Mohd. Ali, learned counsel with Shri Vijay Shukla appearing on behalf of respondent-defendant, has submitted that document is a bond. Notary signed the document as a witness, consequently the document could not be said to be promissory note. The order passed by the trial court is proper. ( 7. ) The main question for consideration is about the nature of document whether it is a bond or promissory note. Section 2(22) of the Stamp Act defines a promissory note by reference to the Negotiable Instruments Act thus :- "A Promissory note" means a promissory note as defined by the Negotiable Instruments Act 1881; It also includes a note promising the payment of any sum of money out of any particular fund which may or may not be available, or upon any condition or contingency which may or may note be performed or happen." In section 4 of the Negotiable Instruments Act, Promissory note is defined in these words :- "Promissory note" is an instrument in writing (not being a bank note or a currency note) containing an unconditional undertaking signed by the maker, to pay certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument." Bond has been defined under section 2(5) of the Indian Stamp Act, 1899 thus: "2(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; ( 8. ) The question whether the document is a promissory note or a bond and the essentials of a promissory note and the distinction has been considered by the Full Bench of this Court in Santsingh Ladharam v. Madandas Gyandas Panika and another, 1976 MPLJ 238 in paragraphs 4,5 and 6 thus : "4. ) The question whether the document is a promissory note or a bond and the essentials of a promissory note and the distinction has been considered by the Full Bench of this Court in Santsingh Ladharam v. Madandas Gyandas Panika and another, 1976 MPLJ 238 in paragraphs 4,5 and 6 thus : "4. The essentials of a 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 a a person who is certain, or to the bearer of the instrument; and (4) The maker should sign it. If these four conditions exist, the instrument is a promissory note. 5. The question of distinguishing a promissory note from a bond arises by reference to clause (b) of the above definition of bond. 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 must be attested by a witness; and (6) It must not be payable to order of bearer. On a comparison between the essentials of d promissory note and those of a bond, three distinguishing features emerge :- (i) If money payable under the instrument is not certain, it cannot be a promissory note, although it can be a bond. (ii) If the instrument is not attested by a witness, it cannot be a bond, although it may be a promissory note; (iii) If the instrument is payable to order or bearer, it cannot be a bond, but it can be a promissory note. 6. To put it differently, there are two peculiar features of a bond:- (1) Positive- it must be attested by a witness. (2) Negative- it must not be payable to order or bearer." ( 9. ) The essentials of a promissory note are; an unconditional undertaking to make payment, the sum should be a sum of money and should be certain, the payment should be to the order of a person who is certain or to the bearer of the instrument and the maker should sign it, these four conditions are necessary. ) The essentials of a promissory note are; an unconditional undertaking to make payment, the sum should be a sum of money and should be certain, the payment should be to the order of a person who is certain or to the bearer of the instrument and the maker should sign it, these four conditions are necessary. In the case of a bond there must be an undertaking to pay, the sum should be a sum of money but not necessarily certain, the payment will be to another person named in the instrument, the bearer/maker should sign it, the instrument must be attested by a witness and it must not be payable to order of bearer. On a comparison between essentials of a promissory note and those of a bond, 3 distinguishing features emerge if money payable under the instrument is not certain, it cannot be a promissory note, although it can be a bond, if the instrument is not attested by a witness, it cannot be a bond, although it may be a promissory note and if the instrument is payable to order or bearer, it cannot be a bond, but it can be a promissory note. ( 10. ) In the instant case, reading of the document in question makes it out that amount of Rs.1 lac has been obtained by the petitioner and was payable on demand, there is an unconditional undertaking to pay the amount which is certain, the payment is to order of a person and Rohni Prasad Tiwari has signed it and it has not been attested by any witness, thus, nature of document indicates it to be a promissory note, it could not be said to be a bond. ( 11. ) The next question for consideration is whether attestation by Notary would mean that he is a witness who has attested the document in the capacity of a witness. Attests means the Act of testifying; testimonial evidence, formal confirmation by signature, oath etc., administration of an oath. The signing by a witness to the signature of another of a statement that a document was signed in the presence of the witness. Attestation is the signing by a witness to the signature of another of a stage that a document was signed in the presence of the witness. The signing by a witness to the signature of another of a statement that a document was signed in the presence of the witness. Attestation is the signing by a witness to the signature of another of a stage that a document was signed in the presence of the witness. To attest is literally to witness any act or event but the term is not exclusively applied to the signature of the executant of a document. Attestation of the signature, sealing or delivery of deed is not necessary to make a deed as such valid but in case of some instruments notably, wills, bills of sale, attestation is required by statute. The definition of the word "attested" in section 63(c) of the Succession Act, 19-25 and in section 3 of the Transfer of Property Act, 1882 is similar. In these Acts, the word attested means that a document is signed by 2 or 3 persons as witnesses, each of whom has seen the executant sign or affix his thumb mark to the instrument in the presence and by the direction of the executant, a personal acknowledgment of his signature or mark or of the signature of such other persons and each of whom has signed the instrument in the presence of the executant, but it shall not be necessary that more than one of such witnesses shall have been present at the same time. Authentication by a Notary is not mere attestation, but something more. It means that person authenticating has assured himself of the identity of the person who has signed the instrument as well as to the fact of execution. Authentication of notary is to be treated as equivalent to affidavit of identity of the executant and no affidavit of the identity of the executant is necessary. ( 12. ) The Apex Court in ML., Abdul Jabbar Sahib v. H. Venkata Sastri and Sons and others etc. (supra) has considered the definition of word "attested" in section 3 of the Transfer of Property Act and has laid down that to attest is to bear witness to a fact. ( 12. ) The Apex Court in ML., Abdul Jabbar Sahib v. H. Venkata Sastri and Sons and others etc. (supra) has considered the definition of word "attested" in section 3 of the Transfer of Property Act and has laid down that to attest is to bear witness to a fact. The essential conditions of a valid attestation u/s3 of T.P. Act are; (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature, (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature "animo attestandi", that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g. to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness, thus, he could not be said to be attesting witness at all. ( 13. ) In our opinion, very function of Notary is to authenticate document to attest so as to ensure about as to the authenticity of the document, that would not make the Notary or registering officer or as the case may be or identifier an attesting witness, thus, it could not be said from the reading of the document in question in instant case that Notary was attesting witness and had the "animo attestandi". There is no mention in the document that document was signed in the presence of the Notary. Notary affixed the seal that document was read over and admitted to be correct, thus, Notary by affixing his seal renders only authenticity to the document, he was not having animo attestandi. Counsel for respondent submitted that Notary has filed affidavit that he had attested document. No doubt he has attested document as Notary but not as attesting witness. What is mentioned in the document has to be seen so as to construe the nature of the document, thus, filing of affidavit cannot change nature of document as it stands. ( 14. ) Shri Mohd. Ali, respondents counsel has referred a decision of the apex Court in Beni Chand by L.Rs. What is mentioned in the document has to be seen so as to construe the nature of the document, thus, filing of affidavit cannot change nature of document as it stands. ( 14. ) Shri Mohd. Ali, respondents counsel has referred a decision of the apex Court in Beni Chand by L.Rs. v. Smt. Kamla Kunwar and others, AIR 1977 SC63 in which Attestation u/s68 of the Succession Act came to be considered by the Apex Court. In the context of attestation the Apex Court has observed that by attestation is meant the signing of a document to signify that the attestor is a witness to the execution of the document; and by section 63(c) of the Succession Act, an attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgment from the executant as regards the execution of the document, the decision buttresses plea raised by petitioner does not help the cause espoused by respondent. ( 15. ) We are of the view that document could not be said to be a bond and the Notary could not be said to be attesting witness of the document, thus, the order passed by the trial court being palpably illegal deserves to be set-aside. ( 16. ) Resultantly, writ petition is allowed. The document is held to be promissory note. Impugned order is set aside. It is made clear that we have not made any observation as to the genuineness of the document. It has to be decided on evidence by trial court. No costs. Petition allowed.