Research › Search › Judgment

Madhya Pradesh High Court · body

2010 DIGILAW 934 (MP)

Khamir Singh v. Hadheshyam Bansal

2010-09-15

A.K.SHRIVASTAVA, BRIJ KISHORE DUBE

body2010
ORDER 1. Feeling aggrieved by the order dated 3.9.2009 passed by the Additional Judge to the Court of Civil Judge Class I, Shivpuri in Civil Suit No. 4-B/2009 dismissing two applications filed by the defendant/petitioner-one under section 11 of the Stamps Act read with Rules 15 and 17 of the M.P. Stamp Rules and another under Order XIV Rule 5 read with section 151 of CPC, the petitioner has filed this writ petition under Article 227 of the Constitution of India. 2. No exhaustive statement of facts is required to be narrated for the purpose of disposal of this writ petition, suffice it to say that a suit on the basis of promissory note executed by defendant/petitioner in favour of plaintiff/respondent has been filed for relisation of a sum of Rs.41,000/-. According to the plaint averments, the defendants/petitioner executed a promissory note on 15.3.2006 for Rs.30,000/- in favour of plaintift7respondent and took loan amount of Rs. 30,000/ It was agreed between the parties that the said amount will be paid alongwith interest at the rate of two percent per annum whenever the demand is made by the plaintiff. Since the amount of promissory note was not paid, hence, the plaintiff after giving notice on 24.4.2008 to the defendant, filed the present suit for realisation of Rs. 41 ,000/-. 3. In the Court below, the impugned document of promissory note was submitted. The defendant/petitioner filed an application under section 11 of the Indian Stamps Act (for brevity, the "Act") read with Rules 15 and 17 of the M.P. Stamp Rules, 1942 (for short, the "Rules") alleging that since the pro note bears adhesive stamp, therefore the same is inadmissible in evidence and because the suit has been filed on the basis of said promissory note, the same be dismissed. An application under Order XIV Rule 5 of CPC was also filed by the petitioner/ defendant for framing some additional issue. 4. The learned trial Court dismissed both these applications by the impugned order. 5. In this manner, present writ petition has been filed by the defendant/petitioner under Article 227 of the Constitution of India. 6. The contention of the learned counsel for the defendant/petitioner is that since the document namely promote bears the adhesive stamp, therefore, the same is inadmissible in evidence and since the suit has been filed on the basis of inadmissible document, the same be dismissed. 6. The contention of the learned counsel for the defendant/petitioner is that since the document namely promote bears the adhesive stamp, therefore, the same is inadmissible in evidence and since the suit has been filed on the basis of inadmissible document, the same be dismissed. In support of his contention, learned counsel has placed heavy reliance on single Bench decision of this Court in Ismail Khan v. Ram Prakash Verma, 2000 (1) MPJR 51 . By putting deep dent on the impugned order of the learned Court dismissing the application under Order XIV Rule 5 of CPC, it has been argued by the learned counsel that the proposed issues are necessmy for the real adjudication of the suit, therefore, the learned trial Court committed grave error in dismissing the application. On these premised submissions, it has been argued by the learned counsel that this petition be allowed. 7. Per contra. Shri Jitendra Sharma, learned counsel for the plaintiff/ respondent argued in support of the impugned order and has submitted that since a revenue stamp has also been affixed on the impugned document of promote, even if an adhesive stamp is pasted, it cannot be said that the promissory note is inadmissible in evidence. Further it has been contended that Issues No.1 and 2 are already framed and, therefore, there is no necessity of framing any additional issues. Learned counsel for the plaintiff/respondent further submitted that in order to delay the trial, these applications have been filed at the time of recording of evidence of the plaintiff and, hence, it has been prayed that this petition be dismissed. 8. Having heard learned counsel for the parties, we are of the view that this writ petition deserves to be dismissed. 9. So far as rejection of the application under section 11 of the Act read with Rules 15 and 17 of the Rules (Annexure P/6) is concerned, suffice it to say that certainly the argument of the learned counsel for the defendant/petitioner could have been accepted, if in addition to the adhesive stamp, the requisite revenue stamp would not have been affixed on the promissory note. In the present case,. on bare perusal or the photo copy or the pro note (Annexure P/2), we find that on the impugned pronate, apart from the requisite stamp of revenue, an adhesive stamp or denomination of Rs.1/- has also been pasted. In the present case,. on bare perusal or the photo copy or the pro note (Annexure P/2), we find that on the impugned pronate, apart from the requisite stamp of revenue, an adhesive stamp or denomination of Rs.1/- has also been pasted. Since apart from the requisite revenue stamp on the promissory note, adhesive stamp has also been pasted, according to us, the document itself cannot be said to be inadmissible in evidence. In this context, we would like to quote section 10 of the Act which speaks about the duty and how it is required to be paid: "10. Duties how to be paid. (1) Except as otherwise expressly provided in this Act, all duties with which any instruments are chargeable shall be paid and such payment shall be indicated on such instruments by means of stamps- (a) according to the provisions herein contained; or (b) when no such provision is applicable thereto as the State Government may by rule direct. (2) The Rules made under sub-section (1) may, among other matters, regulate- (a) in the case of each kind of instrument - the description of stamps which may be used; (b) in the case of instrument stamped with impressed stamps -- the number of stamps which may be used; (c) in the case of bill of exchange or promissory notes, the size of the paper on which they are written." 10. Section 11 of the Act pertains to use of adhesive stamps and it would be condign to re-write that section- "11. Use of adhesive stamps -- The following instruments may be stamped with adhesive stamps namely- (a) instruments chargeable with a duty not exceeding ten naye paise, except parts of bills of exchange payable otherwise than on demand and drawn in sets; . (b) bills of exchange and promissory notes drawn or made out of India; (c) entry as an advocate, vakil or attorney on the role of a High Court; (d) notarial acts; and (e) Transfers by endorsement of shares in any incorporated company or other body incorporate." 11. In order to give positive effect to different provisions of the Act, aforesaid Stamp Rules have been framed. In order to give positive effect to different provisions of the Act, aforesaid Stamp Rules have been framed. Looking to Rule 5 of the said Rules, we find that a promissory note or bill of exchange shall, except as provided by section 11 or by rules 13 and 17, be written on paper on which a stamp of the proper value with or without the word "hundi" has been engraved or embossed. Thus, promissory note can be executed on a paper having a revenue stamp of proper valuation. If we go through Rule 17 which speaks about adhesive stamp, denoting duty of ten naye paisa or five naye paise, we find that such stamp may be inscribed for use for revenue only. We think it apposite to quote said Rule 17 which reads thus - "Adhesive stamp or stamps denoting duty often naye paise and five naye paise - Except as otherwise provided by these rules, the adhesive stamps used to denote duty shall be the requsite number of stamps bearing the words "Twenty-five naye Paise" or "fifteen naye paise" or 'ten naye paise' or "five naye paise" and such stamps may be inscribed for use for revenue. " 12. On bare perusal of the impugned promissory note (Annexure P/2) we find that requisite revenue stamp has been affixed on the pronote. On bare perusal of Rule 17 of the Rules, we find that no adhesive stamp on the pronote can be used except the stamp inscribed for use of revenue, and therefore, according to us, even if, apa.I1 from requisite revenue stamp, an adhesive stamp was additionally affixed, it cannot be said that the document (promissory note) is inadrhissib1e in evidence, and therefore, according to us, petitioner's application (Annexure P/6) has rightly been rejected by the learned trial Court. The decision of Ismail Khan (supra) placed reliance by the learned counsel for the petitioner/defendant does not support the case of the petitioner, rather, it supports the case of the plaintiff/respondent because in that decision, the requisition revenue stamp was not affixed and the pronote was having only an adhesive stamp, and therefore, in that situation the learned Single Bench rightly held that the document of pronote is not admissible in evidence. But in the present case, admittedly, the document of pronote is already having requisite revenue stamp and, therefore, this decision supports the case of plaintiff/respondent. 13. But in the present case, admittedly, the document of pronote is already having requisite revenue stamp and, therefore, this decision supports the case of plaintiff/respondent. 13. Now coming to rejection of the application filed by the defendant/petitioner under Order XIV Rule 5 of CPC according to us, the same has also been rightly rejected by the learned trial Court. On the basis of averments made in the plaint and denial in the written statement, following issues have been framed by the learned trial Court :- ** 1- D;k izfroknh us oknh ls 30]000@& :i;s m/kkj izkIr dj oknh ds i{k esa izksesljh uksV laikfnr fd;k \ 2- D;k oknh lkgwdkjh dk /ka/kk djrk gS \ 3- lgk;rk ,oa O;;\** 14. The issues which the defendant/petitioner has proposed in his application under Order XIV Rule 5 of CPC (Annexure P/5) are: ** 1- D;k oknh us izfroknh ds QthZ gLrk{kj cukdj izksesljh uksV ,oa ikorh i= dh dwV jpuk dh gS ;fn gk¡ rks izHkko\ 2- D;k oknh lkgwdkjh dk O;olk; djrk gS ;fn gk¡ rks D;k oknh }kjk lkgwdkjh fo/kku ikyu fd;k x;k gS\** 15. By keeping the issues already framed by the learned trial Court and the issues proposed to be framed by the defendants/petitioner in juxtaposition to each other and reading them conjointly, we find that the issues already framed by the learned trial Court cover the proposed issues. Therefore, according to us, the learned trial Court did not commit any error in rejecting the application filed by the defendant/petitioner under Order XIV Rule 5 of CPC (Annexure P/5). 16. We have gone through the reasonings assigned by the learned trial Court rejecting these two applications and we find that the reasonings are based on correct appreciation of law. 17. Ex consequenti. we do not find any merit in this writ petition. The same is hereby dismissed. Parties are directed to bear their own costs.