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2010 DIGILAW 518 (JK)

Kartar Chand v. Roop Lal

2010-10-08

Sunil Hali

body2010
1. This Civil revision has been preferred against order dt. 22nd of May’10, passed by the learned Sub Judge, Kathua, whereby the issue No.3, in the civil suit i.e. `whether the D.P. note has not been sufficiently duly stamped and the said deficiency cannot be legally made, as a result of which the same is inadmissible in evidence and the suit is liable to be dismissed’, has been decided in favour of the plaintiff-respondent herein and against the defendant-petitioner. 2. A suit for recovery of Rs.35,000/- along with interest came to be filed by the plaintiff-respondent against the petitioner. Written statement was filed by the petitioner resisting the suit on the ground that the promissory note dt. 23rd of Jan’06, relied upon the respondent is not admissible in evidence as it is not duly stamped and the said deficiency cannot be made up in view of the bar enacted by Section 35 of the Stamp Act, 1977 (1920 A.D.). After framing the issues, the learned trial court vide its order dated 22nd of May’10, decided issue No.3, as noticed above in favour of the respondent. It is this order, which as indicated above, is the subject matter of challenge in the present revision petition. 3. Learned counsel for the petitioner submits that the learned trial court while deciding the aforementioned issue in favour of the respondent-defendant has traveled beyond the scope of the issue by holding that the document which has been relied upon by the respondents in seeking the relief is not a promissory note. It is stated that the issue before the trial court was as to whether the D.P. note is sufficiently stamped and whether on account of said deficiency, the same is admissible in evidence. It is stated that the promissory note has been written on one rupee stamp paper whereas in terms of Article 45 Schedule 1 of the Stamp Act, the same should have been written on the stamp paper of denomination of Rs.2/-. In order to substantiate her argument, the learned counsel for the petitioner has placed reliance on a Division Bench judgment of this court reported in AIR 1966 J&K 127 , Ghulam Mohd Labroo and ors v. Habib Ullah. 4. In order to substantiate her argument, the learned counsel for the petitioner has placed reliance on a Division Bench judgment of this court reported in AIR 1966 J&K 127 , Ghulam Mohd Labroo and ors v. Habib Ullah. 4. Learned counsel for the petitioner further placing reliance on a judgment passed by the Delhi High Court reported in 2008(4) CCC 232, Love Kumar Sethi v. M/s Deluxe Stores and others, submitted that even though the Central Act i.e. Indian Stamp Act, 1899, was amended under which a promissory note not duly stamped was held to be admissible in evidence, the Delhi High Court observed that there being no plea of the petitioner in the above case to that extent that the amendment to the Statute is with prospective effect, the promissory note being not duly stamped is not admissible in evidence. It is stated that as there is no change in the State Act, the promissory note not duly stamped in the present case has to be treated as a deficient document not admissible in evidence. 5. I have heard learned counsel for the parties and perused the record. 6. The issue No.3, framed by the learned trial court , which has been decided against the petitioner-defendant, may be noticed as under:- "Whether the D.P. note has not been sufficiently duly stamped and the deficiency cannot be legally made up and, therefore, same is inadmissible in evidence and suit is liable to be dismissed"? The trial court after taking note of Section 4 of the Negotiable Instruments Act, observed that the document placed on record is not a promissory note and as such, the bar created by Section 35 of the Stamp Act would not be applicable to the facts of this case. It was on this basis, the issue No.3, referred to above, came to be decided in favour of the plaintiff-respondent vide order impugned. 7. Section 4 of the Negotiable Instruments Act, 1881, which defines "Promissory note", reads as under: - "A `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 a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument." 8. A perusal of the above shows that a promissory note is an instrument in writing which is signed by the maker and contains an unconditional undertaking to pay a certain sum of money only to the order of, a certain person or to the one who is the bearer of the said instrument. In the present case, the respondent-plaintiff filed a suit for recovery of Rs. 35000/- with interest @18% per annum, and this was based on the document which has not been treated as a promissory note by the trial court. The respondent plaintiff, however, can rest his claim only if he is certain that this defined amount was paid by him on demand to the petitioner-defendant by executing a document in this regard. The said document, however, may not necessarily say that the respondent promises to repay this amount. If such be the situation, then the document on which he is placing reliance has to be treated as a promissory note. The same can be taken cognizance of for the purposes of setting the controversy only in terms of the provisions of Section 35 of the Stamp Act, which provides that the promissory note is a document which is chargeable with duty and can be admitted in evidence if it is duly stamped, which has to be done in terms of Article 45 Schedule 1 of the said Act, for which stamp duty of Rs.2 is chargeable, when the amount payable on demand exceeds Rs.1000/-. 9. In the case in hand, it has been specifically pleaded that the petitioner defendant agreed to repay a loan amount of Rs.35000/- along with interest @18%, regarding which a D.P. note was executed on which the respondent plaintiff based his claim. The issue framed by the trial court was also to the effect as to whether the D.P. note has been sufficiently duly stamped or not and whether the said deficiency can be legally made and thus, the same is inadmissible in evidence. The trial court without taking note of this fact has reached to a conclusion that the document relied upon by the plaintiff respondent is not a promissory note in terms of Section 4" of the Negotiable Instruments Act and has, accordingly, decided the issue in favour of plaintiff, which view of trial court, in my opinion, is not in accordance with the law. This is because, in case, the document relied upon by the plaintiff respondent herein is not a document which is covered by the definition of `promissory note’, then, the suit of plaintiff-respondent, may not be maintainable. This issue, as such, has to be decided a fresh. 10. For the reasons mentioned above, this petition is allowed. Order impugned dt. 22nd of May’10, is quashed. The matter shall stand remanded to the learned trial court for deciding the issue afresh in accordance with the law. Parties to appear before the trial court on 25th of Oct’10.