JUDGMENT A.C. Upadhyay, J. 1. This appeal is directed against the judgment and decree dated 26.2.2003 in Original Money Suit No. 40 of 1997/23/2000 passed by the Civil Judge Sr. Division-II, Manipur East. 2. Heard Mr. C. Komol, learned Counsel for the defendant No. 1/appellant (herein after appellant) as well as Mr. N. Kerani Singh, learned senior counsel assisted by Shri N. Umakanta, learned Counsel appearing on behalf of the plaintiff/respondents (herein after plaintiff). 3. The plaintiff brought a suit for recovery of a sum of Rs. 1,24,000/- from the appellant on the strength of a promissory note. In the suit a sum of Rs. 1 lakh has been claimed as capital and Rs. 24,000/- by way of interest @ 12% per annum. As against the claim of the plaintiff, the appellant pleaded for setting off of Rs. 1,00,000/- (one lakh) as part payment of sale proceeds of M/s. Luwang Gas Service, and also set up a counter claim for recovery of Rs. 50,000/-from the plaintiff and respondents No. 2 and 3. 4. The facts narrated in the plaint of the original suit which led to the filing of this appeal may be summarized in brief as follows: The appellant, being well acquainted with the plaintiff, approached him for a loan of Rs. 1 lakh to meet some urgent need in his business. The appellant also promised the plaintiff to repay the loan with interest of demand. On such assurance given and promise made by the appellant, the plaintiff agreed to lend sum of Rs. 1 lakh to the appellant. On 1.5.1995 the plaintiff paid a sum of Rs. 1 lakh to the appellant after due execution of a Promissory Note by the appellant. 5. After about 3 months from the date of transaction, the plaintiff demanded the appellant to repay the loan amount for some investment in business. The appellant expressed his inability and requested the plaintiff to wait for at least 5 months. Once again in the month of March, 1996, the plaintiff repeated his demand to the appellant to repay the loan amount. However, the appellant by expressing his personal difficulty did not pay back the loan. Thereafter, the plaintiff issued a legal notice upon the appellant asking him to make the payment of the loan advanced by the plaintiff within a period of 15 days from the date of receipt of the notice. However, the appellant by expressing his personal difficulty did not pay back the loan. Thereafter, the plaintiff issued a legal notice upon the appellant asking him to make the payment of the loan advanced by the plaintiff within a period of 15 days from the date of receipt of the notice. As the appellant did not make payment of the aforesaid amount of Rs. 1 lakh, the plaintiff filed the suit for recovery of the amount aforesaid with interest thereon. 6. The appellant contested the suit by filing written statement of defence by setting up counter claim for recovery of Rs. 50,000/- and also staked a claim for setting off a sum of Rs. 1,00,000/- taken on loan by him from respondent No. 2 i.e. Shri Haobam Basanta Singh, from the consideration amount of Rs. 1,50,000/- of M/s. Luwang Gas Service sold out by him to the plaintiff and respondents 2 and 3. 7. The appellant raised the claim that his father one Shri Nongmaithem Mangi Singh, in fact, ran a business as owner under the name and style of M/s. Luwang Gas Service, having its business within the State of Manipur and business establishment of which was situated on the Airport Road, Imphal. The principal business of M/s. Luwang Gas Service was sale of LPG cylinders of Bajaj make and its components. The appellant, further, clarified that there was another business concern known as M/s. North East Gas Enterprise having its head office situated at Haobam Marak, Imphal, which was a part of business concern styled as M/s. Indo-Gulf Distributors Pvt. Ltd. (in short Indo-Gulf) of Guwahati. M/s. The North East Gas Enterprise was one of the distributors of LPG components to M/s. Luwang Gas Service. Accordingly, M/s. Luwang Gas Service was responsible for payment of dues to the said M/s. North Eastern Gas Service, which in turn, was responsible to Indo-Gulf. 8. M/s. Luwang Gas Service was operating as distributor of LPG gas connections of M/s. Indo-gulf Distributor Pvt. Ltd. A certificate to act as such was also issued w.e.f. 20.12.1994 by Indo-Gulf. The appellant was working as an agent of M/s. Luwang Gas Service on being authorized by the Proprietor, who was none other than is own father. 9. The appellant admitted to have taken a sum of Rs. The appellant was working as an agent of M/s. Luwang Gas Service on being authorized by the Proprietor, who was none other than is own father. 9. The appellant admitted to have taken a sum of Rs. 1 lakh on 1.5.1995 from Haobam Basanta Singh i.e. defendant/respondent No. 2 (herein after respondent No. 2) on give and take basis. The appellant executed the document Ext. A/1 by copying from a draft already prepared by respondent No. 2 and his men, however, denied to have taken any loan from the plaintiff. The appellant, further, clarified that respondent No. 2, who was then Chief Engineer, did not desire to lend the money in his own name and thus the sum of Rs. 1 lakh was lent to him in the name of the plaintiff. Within one week from the date of execution, the appellant alleged that Haobam Henry i.e. respondent No. 3, S/o defendant No. 2, as an agent of the plaintiff, expressed the desire of respondent No. 2 and the plaintiff to purchase the business of the appellant. The appellant consulted his father, Proprietor of the business, and accordingly father of the appellant agreed to sell the business at Rs. 1.50 lakh and accordingly appellant was allowed to settle the terms of business and sell the business at the said price to the plaintiff and respondent No. 2 through Henary Haobam i.e. respondent No. 3. Accordingly, the appellant stated to have sold the business concern to respondent No. 2 represented by respondent No. 3 at a price of Rs. 1.50 lakh. 10. The appellant further stated that it was further agreed between the parties that a sum of Rs. 1 (one) lakh taken by the appellant as loan would be considered as advance payment out of total consideration amount of Rs. 1.50 lakhs, and however, an amount of Rs. 50,000/- remained due to be paid to appellant by plaintiff and Henry Haobam i.e. respondent No. 3. Accordingly, as stated by appellant, the respondent No. 3, purchased the business concern, i.e. M/s. Luwang Gas Service for and on behalf of the plaintiff, on 6.5.1995 and thus, started running the business. 1.50 lakhs, and however, an amount of Rs. 50,000/- remained due to be paid to appellant by plaintiff and Henry Haobam i.e. respondent No. 3. Accordingly, as stated by appellant, the respondent No. 3, purchased the business concern, i.e. M/s. Luwang Gas Service for and on behalf of the plaintiff, on 6.5.1995 and thus, started running the business. The appellant, further, alleged that the plaintiff and the said Henry Haobam i.e. respondent No. 3, jointly ran the business of the appellant, for about one year and after collecting some few lakhs rupees from the consumers without making payment of company's dues, requested the appellant to revoke the sale and pay advance of Rs. 1 lakh with interest. The appellant took the stand that he was entitled to recover Rs. 50,000/- from the plaintiff at an interest @ Rs. 12% per annum after setting off a sum of Rs. 1 lakh claimed by the plaintiff. 11. The plaintiff also filed a written statement to the counter claim of the appellant and denied all the allegations so made by the appellant. The plaintiff took the stand of non-joinder of respondent No. 2 and Henary Haobam i.e. respondent No. 3 (herein after respondent No. 3) who were necessary parties, in the suit. Subsequently, both the persons, namely, respondent No. 2 and respondent No. 3, were brought in the suit as respondents Both of respondent Nos. 2 and 3 contested the counter-claim denying all the negations made by the appellant, On the pleading of the parties, the following issues were framed by the learned Court below for just decision of the case: 1. Whether the defendant No. 1 borrowed a sum of Rs. 1,00,000/- from the plaintiff with interest at the rate of 12% p.a. by executing a promissory note dated 1.5.1995? 2. Whether the defendant No. 1 took a sum of Rs. 1,00,000/- from the Proforma defendant No. 2 by writing an agreement in the name of the plaintiff? 3. Whether defendant No. 1 defaulted to repay the sum of Rs. 1,00,000/-to the plaintiff? 4. Whether the plaintiff and proforma defendant No. 2 have joint business and proforma defendant No. 3 is their agent? 5. Whether the defendant No. 1 as agent of M/s. Luwang Gas Service have sold their business to the plaintiff and proforma defendant No. 2 represented by the proforma defendant No. 3 on 6.5.1995 at a sum of Rs. 4. Whether the plaintiff and proforma defendant No. 2 have joint business and proforma defendant No. 3 is their agent? 5. Whether the defendant No. 1 as agent of M/s. Luwang Gas Service have sold their business to the plaintiff and proforma defendant No. 2 represented by the proforma defendant No. 3 on 6.5.1995 at a sum of Rs. 1,50,000/-? 6. Whether the plaintiff and proforma defendants are liable to pay a sum of Rs. 50,000/- to the defendant No. 1? 7. Whether there is cause of action of the suit? 8. Whether there is cause of action of the counter claim? 9. Whether the counterclaimed/setoff suffers from non-joinder of necessary parties? 10. Whether the plaintiff is entitled to the reliefs claimed? 11. Whether the defendant No. 1 is entitled to set-off a sum of Rs. 1,00,000/- from the plaintiff? 12. During the course of hearing, the plaintiff examined as many as 2 (two) witnesses and exhibited three documents to prove the issues relevant for the purpose of a decision in his favour. The appellant also examined in all 4 witnesses and produced documents in support of his stand. During the course of hearing, respondent No. 2 and 3 failed to appear and contest and accordingly the suit was ordered to be heard ex parte against them. Learned Court below, after having discussed and decided all the issues in the suit, decreed the suit of the plaintiff by dismissing the counter claim and set off pleaded by appellant, giving rise to this appeal. 13. The appellant had admitted of having taken loan of Rs. 1; lakh from the plaintiff through Respondent No. 2 on give and take basis. However, the appellant did not explain and prove the contract of give and take and the reason of taking a sum of Rs. 1 lakh on loan by signing a document Exhibit A-1 a promissory note. However, the contents of document Exhibit A-1 signed by appellant do not confirm and approve his own stand. In any view of the matter, fact remains that appellant has admitted to have taken the loan of Rs. 1 lakh @ Rs. 12% per annum by executing a document Ext. A-1. The moot question which is required to be decided in this appeal is whether the plaintiff and respondent Nos. In any view of the matter, fact remains that appellant has admitted to have taken the loan of Rs. 1 lakh @ Rs. 12% per annum by executing a document Ext. A-1. The moot question which is required to be decided in this appeal is whether the plaintiff and respondent Nos. 2 and 3 had a joint business and whether the appellant as an agent of M/s. Luwang Gas Service sold out the entire business to the plaintiff and the respondent No. 2 represented by respondent No. 3, for a sum of Rs. 1.50 lakh. 14. Now another question which arises for consideration is as to whether the appellant borrowed a sum of Rupees one lakh from the plaintiff by executing document Ext. A-1 on 1.5.1995. The plaintiff convincing proved by adducing his own testimony and testimony of PW 2 to establish that the appellant wrote the promissory note Exhibit A-1 on his own, promising to pay a sum of Rs. 1 lakh on demand. It is apparent from the evidence on record that Ext. A-1, executed by the appellant clearly reveals it to be a promissory note as defined under Section 4 of the Negotiable Instruments Act, 1881 having all the ingredients of a promissory note. Nevertheless the stand of the appellant regarding the payment having been made by the respondent No. 2 after signing the promissory note Exbt. A-1 could not be established by the appellant by adducing convincing and logical evidence. 15. Learned Counsel for the appellant submitted that the learned Court below misread the evidence of the witnesses and held the execution of promissory note by appellant on behalf of plaintiff if the suit to be valid. Learned Counsel for the appellant further rconterded that the promissory note Ext. A-1 is a bond in terms of the provisions of Stamp Act, 1899 and the bond being not properly stamped, will have no evidentiary value. It is further contended by learned Counsel for the appellant that the document Exhibit A-1 as a bond being chargeable with a stamp duty was not admissible in evidence. On perusal of the Ext. A-1, the promissory note it appears that the adhesive stamp has been marked and proved by the witness and admitted in evidence by the learned Court below by holding the document to be properly stamped. On perusal of the Ext. A-1, the promissory note it appears that the adhesive stamp has been marked and proved by the witness and admitted in evidence by the learned Court below by holding the document to be properly stamped. Now the controversy can be resolved in view of the provisions of Section 36 of the Stamp Act, 1899, which reads as follows: Section 36 The admission of instrument were not to be questioned : Whether instrument has been admitted in evidence, such an 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. 16. It is amply clear from the provisions of Section 36 that when a document has once been admitted in evidence by the learned Court below such admission cannot be called in question at any later stage of the suit or proceeding on the ground that the instrument on the document has not been duly stamped. The only exception indicated therein is under Section 61 or the Stamp Act. However, in the facts, and circumstances discussed above, Section 61 is not material in the present controversy. From the proceeding of the suit and evidence on record it appears that the document Ext. A-1 was admitted in evidence by the learned Court below and signatures and hand writing made therein was not disputed by appellant in the suit. Therefore, it can very well be presumed that the document Ext. A-1 was marked by the learned Court below and admitted after having been satisfied that the document is properly stamped. In such a situation provisions of Section 36 of the Stamp Act comes into operation and it is not open either for the Trial Court itself or this Court of appeal or revision to open the topic of admissibility of the document Ext. A-1 and as such, contention of learned Counsel for the appellant cannot be accepted. 17. In such a situation provisions of Section 36 of the Stamp Act comes into operation and it is not open either for the Trial Court itself or this Court of appeal or revision to open the topic of admissibility of the document Ext. A-1 and as such, contention of learned Counsel for the appellant cannot be accepted. 17. It has been held by the Hon'ble Supreme Court in Javer Chand v. Pukhraj Surana AIR 1961 SC 1655 : (1962) 2 SCR 333 , by discussing the provisions of Section 36 of the Stamp Act, 1899, as follows: That section is categorical in its terms that when a document has once been admitted in evidence, such admission cannot be called in question at any stage of the suit or the proceeding on the ground that the instrument had not been duly stamped. The only exception recognised by the section is the class of cases contemplated by Section 61, which is not material to the present controversy. Section 36 does not admit of other exceptions. Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the Court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed, Section 35 is in the nature of a penal provision and has far-reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. The record in this case discloses the fact that the hundis were marked as Exts. P-1 and P-2 and bore the endorsement "admitted in evidence" under the signature of the Court. It is not, therefore, one of those cases where a document has been inadvertently admitted, without the Court applying its mind to the question of its admissibility. The record in this case discloses the fact that the hundis were marked as Exts. P-1 and P-2 and bore the endorsement "admitted in evidence" under the signature of the Court. It is not, therefore, one of those cases where a document has been inadvertently admitted, without the Court applying its mind to the question of its admissibility. Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, Section 36 of the stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial Court itself or to a Court of appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction. In yet another decision Hon'ble Supreme Court in Hindustan Steel Ltd. v. Dilip Construction Co. AIR 1969 SC 1238 : (1969) 1 SCC 597 , explaining the scheme of the Stamp Act observed as follows: 7. The Stamp Act is a fiscal measure enacted to secure revenue for the State on certain classes of instruments : It is not enacted to arm a litigant with a weapon of technicality to meet the case of his opponent. The stringent provisions of the Act are conceived in the interest of the revenue once that object is secured according to law, the party staking his claim on the instrument will not be defeated on the ground of the initial defect in the instrument. 18. Therefore, in view of the above discussion and taking into account the admission of the document Exhibit A-1 in evidence together with the findings of the learned Court below, it clearly transpire that Ext. A-1 had all the essential ingredients of a promissory note. Over and above as observed by learned Court below Ext. A-1 was also duly stamped in terms of the provisions of the Stamp Act. A-1 had all the essential ingredients of a promissory note. Over and above as observed by learned Court below Ext. A-1 was also duly stamped in terms of the provisions of the Stamp Act. Therefore, in terms of the decision of the Hon'ble Supreme Court in Javer Chand v. Pukhraj Surana, (Supra) it is not open either for the Trial Court itself or this Court of appeal or revision to open the topic of admissibility of the document Ext. A-1. From the above discussion and the materials on record it is amply clear that the appellant had borrowed a sum of Rs. 1 lakh from the plaintiff by executing the promissory note aforesaid. 19. It would be pertinent to mention here at the cost of repetition that though in has been pleaded on behalf of the appellant that a sum of Rs. 1 lakh was taken in loan on give and take basis from respondent No. 2 but appellant could not adduce any evidence worth the name to establish such a fact. The evidence led by the appellant on the face of admitted document Ext. A-1, did not at all inspire confidence to hold that he borrowed a sum of Rs. 1 lakh from the respondent No. 2 and not from the plaintiff. The very attitude of appellant in respect of borrowing the amount of Rs. One lakh from another person other than the person who he had promised to pay on demand by singing Ext. A-1, reveals that he never bothered to repay the loan to the plaintiff. Further, the appellant took a specific stand of having adjusted the amount of Rs. 1,00,000/- as advance received by him out of total consideration amount of Rs. 1.50 lakhs for sale of M/s. Luwang Gas Agency to the plaintiff's agent. Therefore, from the above discussion, it is sufficiently evident that the loan amount of Rs. One lakh taken by the appellant from the plaintiff remained unpaid. 20. The appellant in his counter claim has stated that the plaintiff and the respondent N. 2 and 3 had a joint business where the respondent No. 3 was their agent. To prove this fact the burden exclusively lay on the appellant. The appellant in his deposition stated that the plaintiff and respondents had a joint business and the respondent No. 3 was working as agent of the plaintiff and respondent No. 2. To prove this fact the burden exclusively lay on the appellant. The appellant in his deposition stated that the plaintiff and respondents had a joint business and the respondent No. 3 was working as agent of the plaintiff and respondent No. 2. However, he could not establish such a fact by adducing any cogent and reliable evidence, When a Business concern is run by a group of people admittedly dealing in supply of gas cylinders and its components, such a business could not have been carried out by the plaintiff and respondent Nos. 2 and 3 without the knowledge of the local people, administration and the supplier of the gas cylinders and without a valid transfer documents in writing. On the top of it, as alleged, the appellant could not prima facie prove a valid, workable and subsisting partnership of the plaintiff and the respondents No. 2 and 3. and thus failed to prove and/or established that the plaintiff together with respondent Nos. 2 and 3 had a joint business. 21. The contention of the appellant without any specific facts or documents in support cannot give rice to a presumption that the plaintiff together with respondent Nos. 2 and 3 were doing a joint business. Though the appellant in his evidence stated that with the consent of his father he sold out M/s. Luwang Gas Service to the respondent No. 2, but no such document whatsoever of such deal or agreement, was produced in the Court, for examination of the Court to prove the fact stated by the appellant. On the top of it, there is no evidence worth the name to ascertain with certainty that Rs. 1 lakh borrowed by the appellant was agreed to be adjusted as a part payment for the price of M/s. Luwang Gas Service allegedly sold at Rs. One Lakh Fifty Thousand by the appellant on behalf of his father. Though the appellant stated that after having purchased the business concern from him the plaintiff together with respondent Nos. 2 and 3 ran the business from a room of Hotel Excellency and sold LPG connection and components to 40 consumers at the rate of Rs. 3,300/- per connection by singing consumer cards, but such a fact also could not be proved by the appellant by adducing logical and rational evidence. 2 and 3 ran the business from a room of Hotel Excellency and sold LPG connection and components to 40 consumers at the rate of Rs. 3,300/- per connection by singing consumer cards, but such a fact also could not be proved by the appellant by adducing logical and rational evidence. Admittedly, M/s. Luwang Gas Service was a distributor of a bigger corporation, namely, M/s. North Eastern Gas Enterprises located at Hotel Excellency and the said M/s. North Eastern Gas Enterprises was working in Manipur as distributor of Indo Gulf Fuel, therefore, transfer of business establishment and change of ownership could not have been carried out without documentary proof. No such documentary proof, whatsoever, of transfer of M/s. Luwang Gas Agency, has been produced before the learned Court below. 22. DW 2, who was working as a Lower Division Clerk of the M/s. North Eastern Gas Enterprises stated that M/s. Luwang Gas Service was a distributor of M/s. North Eastern Gas Enterprises, located at Hotel Excellency. The said North Eastern Gas Enterprises was working in Manipur as the distributor of Indo Gulf Fuel Distributor Pvt. Ltd. The evidence of DW 2 revealed that he heard about charge of ownership of M/s. Luwang Gas Agency to the respondent No. 2 and 3 but did not know in whose name it was transferred. DW 2 stated to have received an application signed by Henry Haobam i.e. respondent No. 3 as consumer. The fact of change of ownership cannot be relied on basing on the hearsay evidence of DW 2, and oral statement of the appellant in the absence of document to support such transfer of property. However, as against stout denial of the adversary, the evidence laid by DW 2 could not clarify as to how he was familiar with the signature of respondent No. 3 i.e.. Henry Haobam and how respondent No. 3 can be treated to be an agent of the plaintiff. Thus, it appears as alongside denial of the plaintiff, the proof of change of ownership is not explicit from the evidence laid by the appellant. 23. DW 3, who is the father of appellant stated that he allowed his son to dispose of M/s. Luwang Gas Service, which was owned by him if he desired to do so and if he thought it to be beneficial to him. 23. DW 3, who is the father of appellant stated that he allowed his son to dispose of M/s. Luwang Gas Service, which was owned by him if he desired to do so and if he thought it to be beneficial to him. DW 3 further stated that one Telephone Bill in the name of M/s. M. Koireng Singh, C/o. Luwang Gas Service, Hodam Leirak, was sent to his house by Book Post after it was refused to be received by Ms. Koireng Singh and his family at Hodam Leirak, Imphal. DW 4, an employee of the Telephone Department also deposed to prove that one telephone bill Ext. B-3 wherein name of M/s. Koireng Singh, with C/o. M/s. Luwang Gas Service written in it bearing telephone No. 224736 was issued by the Telephone department. However, DW 4 did not know who the Account Officer was and whether any document in respect of the aforesaid telephone is in existence. 24. It would not be at all safe to base a decision regarding ownership of a business unit by proving one single telephone bill purportedly bearing the name of the father of the plaintiff by showing the address of M/s. Luwang Gas Service. 25. Oral statement regarding change of ownership of a business concern without adequate and convincing evidence on record would not be sufficient proof of transfer of a business establishment. It at all the sum of Rs. 1 lakh, which was taken by appellant, is treated to be an advance of sale proceed of the business concern, i.e. M/s. Luwang Gas Service, either it should have been reflected in Ext. A-1 signed by appellant or some second document should have been signed between the parties to verify such a transaction. As rightly indicated by the learned Court below that in terms of provisions of Section 92 of the Evidence Act, if a contract or a part of the contract is reduced into writing whether or not such contract or grant is compulsorily required to be in writing, no oral evidence shall be admitted to contradict, vary it or subtract it from the terms of the contract. More so, though appellant frantically tried to establish the plaintiff to be one of the partners in taking over, but no substantial or convincing evidence could be laid before the Court to prima facie prove that the plaintiff was one of the partners in the transaction. Therefore, without lingering the discussion, I am of the considered view that the appellant grossly failed to establish that M/s. Luwang Gas Service was transferred to the plaintiff and to other respondents on promise of payment consideration of a sum of Rs. 1 (one) lakh 50 (fifty) thousand and out of which Rs. 1 lakh was paid to appellant or adjusted as advance by signing Ext. A-1. 26. In view of the above findings, the counter claim of appellant cannot be said to have been established to award the relief sought for. 27. Further, in view of what has been discussed above, this Court is of considered view that there is no scope to interfere with the impugned decree awarded by the learned Court below. Accordingly, this appeal stands dismissed.