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Andhra High Court · body

2011 DIGILAW 783 (AP)

Undeela Gowrinadh v. Mutyam Anil Kumar

2011-09-19

NOOTY RAMAMOHANA RAO

body2011
Judgment : This Civil Revision Petition is preferred by the defendant in the suit whose objection for marking the document dated 12.09.1997 on behalf of the respondent herein, has been overruled. 2. The respondent herein was being examined as P.W.1 in the suit filed by him to recover certain amount from the defendant based on a document executed by the defendant on 12.09.1997 and when the said document is sought to be marked on behalf of the plaintiff, an objection has been raised for marking the said document on the ground that the document is not a “receipt”, but is a “bond”, as defined in terms of sub-section (5) of Section 2 of the Indian Stamp Act, 1899 and consequently, it has not been properly stamped and unless it is impounded and penalty is levied thereon, it is inadmissible in evidence. This objection has been overruled by the Court below on the ground that the requirements of “bond” are absent and the document amounts to only an acknowledgment of the defendant to pay the amount mentioned under the said document to the plaintiff. On that basis, the Court construed the document as a mere “receipt”, as defined in Section 2 (23) of the 1899 Act. Against this order permitting the suit document to be marked, the present Revision is preferred. 3. The short question that falls for consideration is, whether the document, dated 12.09.1997 answers the definition of “bond” as defined in sub-section (5) of Section 2 of the Indian Stamp Act, 1899 or it merely amounts to a “receipt” as defined under subsection (23) of Section 2 of the said Act. 3. The short question that falls for consideration is, whether the document, dated 12.09.1997 answers the definition of “bond” as defined in sub-section (5) of Section 2 of the Indian Stamp Act, 1899 or it merely amounts to a “receipt” as defined under subsection (23) of Section 2 of the said Act. It is therefore, appropriate to notice the definition of the expressions “bond” and “receipt”, as set out in the Stamp Act which are to the following effect: “Bond: - “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;” “Receipt”:- “Receipt” includes any note, memorandum or writing— a) whereby any money, or any bill of exchange, cheque or promissory note is acknowledged to have been received; or b) whereby any other movable property is acknowledged to have been received in satisfaction of a debt; or c) whereby any debt or demand, or any part of a debt or demand, is acknowledged to have been satisfied or discharged; or d) which signifies or imports any such acknowledgment, and whether the same is or is not signed with the name of any person.” 4. If an instrument has to answer the description of “bond”, such an instrument must evidence that: (1) the person obliges himself to pay money to another, on condition that the said obligation shall be void if a specified act is performed or is not performed, as the case may be; (2) an instrument whereby a person obliges himself to pay money to another and is attested by a witness but the said money is not payable to order or bearer; (3) any instrument attested by a witness whereby a person obliges himself to deliver grain or other agricultural produce to another. 5. When I perused the suit document dated 12.09.1997, which is in Telugu language, it is not in dispute that the said document has been attested by as many as seven witnesses. 5. When I perused the suit document dated 12.09.1997, which is in Telugu language, it is not in dispute that the said document has been attested by as many as seven witnesses. Further, the recitals therein clearly disclose the obligation undertaken by the defendant/ petitioner to refund a sum of Rs.1,50,000/- without interest to the plaintiff/respondent. Most crucially, there is no undertaking contained in the said document that the amount mentioned therein is payable to order or bearer of the plaintiff. Therefore, clause (b) of sub-section (5) of Section 2 is squarely attracted to the instrument in the instant case. As could be noticed, clauses (a), (b) and (c) of subsection (5) of Section 2 contemplate three different and divergent situations. One contemplates payment of money subject to performance or forbearance thereof a specified act, while the second and third situations deal with an instrument attested by a witness undertaking to pay either money or to deliver grain or agricultural produce. There is, plainly, no common thread running in between them. Therefore, if clause (b) thereof is attracted to an instrument, such an instrument is liable to be construed as a “bond”, though the other two clauses may not be attracted, at the same time. As is well known, a promissory note is an instrument reduced to writing containing an unconditional undertaking signed by its maker, to pay a certain money only to, or order of another person or the bearer of the instrument. By containing the expressions “order of or bearer of”, a promissory note containing the obligation to pay money to another person, renders the said instrument a negotiable instrument. If an instrument lacks that authority of negotiability, then the undertaking to pay money or to deliver grain or other agricultural produce, coupled with attestation by a witness, renders that instrument to be a bond. An instrument is required to be considered by taking into account the contents thereof and strictly applying to it the definition ascribed in the Stamp Act, while examining the same for purposes of stamp duty. 6. An instrument is required to be considered by taking into account the contents thereof and strictly applying to it the definition ascribed in the Stamp Act, while examining the same for purposes of stamp duty. 6. Per contra, the definition of “receipt” discloses that (1) where any money or any bill of exchange, cheque or promissory note is acknowledged to have been received or (2) where any other movable property is acknowledged to have been received, in satisfaction of a debt or (3) where any debt or demand, or any part of a debt or demand, is acknowledged to have been satisfied or discharged, or (4) where the instrument signifies or imports any such acknowledgment and whether the same is or is not signed with the name of any person, then alone, such an instrument can answer the definition of a “receipt”. It is no doubt true that the suit document dated 12.09.1997 also contains a recital about the receipt of Rs.1,50,000/- paid by the plaintiff to the defendant. That is only one part of it. It is the later part of the suit document, as was noticed supra, which squarely attracted the conditions contained in clause (b) of sub-section (5) of Section 2. In that view of the matter, the suit document is chargeable as a bond, inasmuch as it did not contain any recital that the money is payable to order or bearer of the plaintiff. 7. Section 6 of the Stamp Act, makes it clear that if an instrument is so framed as to come within two or more descriptions in Schedule I or in Schedule I-A as the case may be, where the duties chargeable thereunder are different, shall be chargeable with the highest of such duties. “Bond”, which is included at entry 15 of the Schedule I and “Receipt” which is included at entry 53 of the same Schedule, are liable to suffer different charges and between the two, a bond is chargeable with more duty. Section 6 deals with instruments, which may legitimately fall under one or more of the entries enumerated in either Schedule I or Schedule I-A of the Stamp Act. In this view of the matter, the suit instrument is liable to be construed as a “bond”, but not a “receipt”, since it contained something more than a mere acknowledgement of money and consequently, liable to be charged to duty accordingly. In this view of the matter, the suit instrument is liable to be construed as a “bond”, but not a “receipt”, since it contained something more than a mere acknowledgement of money and consequently, liable to be charged to duty accordingly. 8. Learned counsel for the petitioner Sri Hari Sreedhar has placed reliance upon the judgment rendered by a Division Bench of this Court in State Bank of Hyderabad v. Ranganath Rathi 1964 (2) An.W.R. 472. The Division Bench of this Court, after an elaborate consideration of various judgments, has held as under: “………… We find on a careful review of the decisions rendered by the High Courts of Bombay, Allahabad, Patna and Madras, that in some of them the words ‘on demand’ were there but notwithstanding the existence of these words, the Courts had taken the view that the documents did not satisfy the test of negotiability and that they were not promissory notes. The expression ‘on demand’ in a promissory note has a technical meaning. It means ‘payable immediately or forthwith’. But every document which contains a promise to pay on demand is not necessarily a promissory note.” 9. Hence, this Civil Revision Petition is allowed, upholding the objection raised by the defendant for marking the suit document. No costs.