JUDGMENT : Prayer: Second appeal filed under Section 100 of C.P.C., against the Judgment and Decree made in A.S.No.70 of 2004 dated 10.09.2004 on the file of the Principal District Judge, Tirunelveli, confirming the Judgment and Decree made in O.S.No.283 of 2000 on the file of the Principal Subordinate Judge, Tirunelveli, dated 10.03.2004. The second defendant in O.S.No.283 of 2000 on the file of the Principal Subordinate Court, Tirunelveli, is the appellant in this second appeal. 2. The respondent herein Thiru.Chenthil Kumar filed the said suit seeking recovery of a sum of Rs.1,80,054/- with interest from the defendants. Two persons were shown as defendants in the suit. The first was the Correspondent of St. Antony High School, Alavanthankulam, Pallikottai, Tirubnelveli Taluk. The appellant herein was shown as the second defendant. She was the Headmistress of the said school during the relevant time. 3. The case of the plaintiff as projected in the plaint was that he was a qualified building contractor and that the defendants entered into a contract with him on 24.03.1997 to put up a new construction and also to do renovation and repair works of an existing building. The estimate was originally fixed at Rs.3,75,000/-. Later changes were suggested and additional works were carried out. The plaintiff claimed that he was paid only at the original contract rate and the balance amount was not paid. When he made demands, Ex.A.1 dated 07.12.1997 was issued. Since the defendants did not stick to the terms of the undertaking set out in Ex.A.1, he filed the said suit for recovery of the suit claim. 4. The appellant herein filed a detailed written statement. The stand of the appellant was that the plaintiff completed only 70% of the entrusted works and failed to carry out the remaining job. However, he had already received the entire contract amount of Rs.3,75,000/-. Hence, the work had been entrusted to another contractor, by name, Mr.Jose and that resulted incurring additional expense of Rs.1,20,000/-. The appellant denied having executed Ex.A.1 document. It was characterised as rank fabrication. The appellant pleaded that her signature was obtained in blank letterhead of the school for the purpose of purchasing cement at concessional rate from the manufacturer and the said signed blank letterhead was misused. The defendants raised a counterclaim for a sum of Rs.1,12,500/- from the plaintiff. The appellant denied having executed Ex.A.1 document. It was characterised as rank fabrication. The appellant pleaded that her signature was obtained in blank letterhead of the school for the purpose of purchasing cement at concessional rate from the manufacturer and the said signed blank letterhead was misused. The defendants raised a counterclaim for a sum of Rs.1,12,500/- from the plaintiff. The stand of the first defendant was that he had nothing to do with entrustment of the contract works in favour of the plaintiff. During the pendency of the suit, the second defendant filed I.A.No.507 of 2003 for sending Ex.A.1 document for obtaining forensic opinion. According to the appellant, both Ex.A.1 document as well as Ex.A.3 suit notice were typed by using the very same typewriter and fabrication could be established only by obtaining the opinion of the expert. The said I.A. was however dismissed on 13.01.2004. 5. The Court below framed the necessary issues and the parties went to trial. The plaintiff examined himself as P.W.1 and one Ganesan as P.W.2. Ex.A.1 to Ex.A.5 were marked. The first defendant was examined as D.W.1 and the appellant was examined as D.W.2. Thiru. Jose who was said to be an other contractor to whom the balance works were entrusted was examined as D.W.3. The learned trial Judge after a consideration of the evidence on record, dismissed the suit as regards the first defendant and decreed the suit as regards the second defendant/appellant herein. The appellant was directed to pay a sum of Rs.1,35,142/- to the plaintiff with interest calculated at the rate of 9% from 01.02.1998 till the date of filing of the suit and at the rate of 6% from the date of filing of the suit till the date of payment. Aggrieved by the same, the appellant herein filed A.S.No.70 of 2004 before the Principal District Judge, Tirunelveli. The first appellate Court by the Judgment and Decree dated 10.09.2004 dismissed the appeal. Challenging the same, this second appeal came to be filed. 6. Aggrieved by the same, the appellant herein filed A.S.No.70 of 2004 before the Principal District Judge, Tirunelveli. The first appellate Court by the Judgment and Decree dated 10.09.2004 dismissed the appeal. Challenging the same, this second appeal came to be filed. 6. The second appeal was admitted on the following substantial question of law:- “Are the lower Courts justified in decreeing the suit against defendant No.2, based on Ex.A.1, which is a combination of promissory note and acknowledgement, by holding that it is a “cWjpnkhopf; fbjk;" and not a promissory note or acknowledgment, and hence need not be stamped and admissible in evidence, over looking the fact that admission of unstamped documents is expressly barred under Section 35 of the Indian Stamp Act and no relief based on Ex.A.1 could be granted to the respondent, as per dictum laid down by Hon'ble High Court of Judicature, Chenai, in A.C.Lakshmipathy and Another V. A.M. Chandrapani Reddiar and Others, reported in IV (2001) CLT 521 (DB)?” 7. Notice was ordered to the respondent and he entered appearance through counsel. 8. When the matter was taken up for hearing, the appellant filed C.M.P(MD)No.1617 of 2021 seeking leave to raise additional substantial questions of law. I declined to grant leave and told the learned counsel appearing for the appellant that the second appeal will be heard only on the substantial question of law that was formulated at the time of admission. 9. The learned counsel appearing for the appellant submitted that if Ex.A.1 is properly construed, it can only be categorised as a promissory note. If so construed, since it was unstamped, it is clearly not admissible in evidence. He would further point out that the appellant can certainly raise this plea regarding admissibility, even though the said document had apparently been marked without objection. He added that this contention is without prejudice to his basic submission that Ex.A.1 is a fabricated document. He pointed out that there are many discrepancies between the testimony of P.W.1 and P.W.2 and contended that the findings of the Courts below suffered from perversity. The learned counsel had filed an elaborate notes on submissions and also had enclosed a catena of case laws. 10. He pointed out that there are many discrepancies between the testimony of P.W.1 and P.W.2 and contended that the findings of the Courts below suffered from perversity. The learned counsel had filed an elaborate notes on submissions and also had enclosed a catena of case laws. 10. The learned counsel for the appellant placed reliance on the following rulings:- (1) CDJ 1996 SC 1970 (State Through CBI/New Delhi V. S.J.Choudhary) (2) CDJ 2005 SC 558 (Phool Pata and Another V. Vishwanath Singh and Others) (3) CDJ 2006 SC 177 (Ushabai and Others V. M/s.Balkrishna Biharilal and Others) (4) CDJ 2000 MHC 421 (A.C.Lakshmipathy and Another V. A.M.Chakrapani Reddiar and Others) (5) CDJ 1967 MHC 142 (Yasodammal V. Janaki Ammal) 7/18 (6) CDJ 2004 MHC 1038 (S.Ameer V. Vivek Enterprises) (7) CDJ 2007 MHC 5088 (P.Bency and Others V. Martin Mary) (8) CDJ 2006 MHC 641 (R.Ravindran V. M.Rajamanickam) (9) CDJ 1955 MHC 086 (Validation of Document V. State) (10) CDJ 1965 APHC 284 (Bahadurrinisa Begum V. Vasudev Naick and Others) (11) CDJ 2003 SC 359 (Bondar Singh & Others V. Nihal Singh & Others) (12) CDJ 2006 SC 399 (Hero Vinoth(Minor) V. Seshammal (13) CDJ 1999 SC 710 (Ishwar Dass Jain(Dead) through LRs. V. Sohan Lal(Dead) through LRs.) (14) CDJ 2005 SC 800 (Ramlal & Another V. Phagua & Others) (15) CDJ 1979 SC 295 (Smt.Sukhrani (Dead) by LRs. and Others V. Hari Shankar and Others) (16) CDJ 2002 SC 100 (Suganthi Suresh Kumar V. Jagdeesan) (17) CDJ 2015 MHC 4651 (Muthu Pillai & Another V. Kasi Pillai & Another) (18) CDJ 2021 MHC 117 (S.Rajasekar V. A/M.Marudeeswarar Temple, Rep. By its Executive Office, Tiruvanmiyur, Chennai & Another) (19) CDJ 1993 SC 657 (S.P.Chengalvaraya Naidu(Dead) By LRs V. Jagannath(Dead) By LRs. & Others) (20) CDJ 1999 MHC 482 (Chinnasamy V. Perumal) (21) CDJ 2003 SC 922 (R.V.E. Venkatachala Gounder V. Arulmigu Viswesaraswami & V.P.Temple & Another) 11. Per contra the learned counsel appearing for the respondent submitted that the impugned Judgments do not warrant any interference. He placed reliance on the decision reported in (2003) 1 MLJ 656 (Sayambu Nadar V. Subramaniam) in support of his proposition that the character of a document will have to be determined with reference to the overall facts and circumstances. According to him, Ex.A.1 is a mere letter of undertaking and it cannot be construed as a promissory note. He placed reliance on the decision reported in (2003) 1 MLJ 656 (Sayambu Nadar V. Subramaniam) in support of his proposition that the character of a document will have to be determined with reference to the overall facts and circumstances. According to him, Ex.A.1 is a mere letter of undertaking and it cannot be construed as a promissory note. According to him, the said document does not require to be stamped. He prayed for dismissal of the second appeal. 12. I carefully considered the rival contentions and went through the evidence on record. 13. The Courts below have concurrently rendered a finding that the appellant herein had entrusted the work of carrying out certain constructions to the plaintiff in March 1997. It has further been concurrently found that Ex.A.1 was actually executed by the appellant. The appellant was the Headmistress of a Government Aided School and the Courts below rightly disbelieved her claim that she handed over signed blank letterheads to the plaintiff. Ex.A.1 reads as follows:- “THE HEADMISTRESS ST.ANTONY'S HIGH SCHOOL Alavanthankulam, Pallikottai – 627 357, Tirunelveli Dt. Date 07.12.1997 To N.Chenthil Kumar, Prop.Jai Anjaneya Constructions, No.11-A-1, Sagotharar Street, Ramavarmapuram, Nagercoil – 1. Sir, We have contracted with you to construct a new building and to do the renovation, re-modelling and repair works in respect of the chapel and quarters buildings. As per the contract, you have completed the new building and the repair, renovation and re-modelling of the old buildings. On verification of the entire work done along with modifications, etc.(in respect of the new building) and the estimate costs and the repair, renovation and re-modelling of the old existing buildings with the actual sites expenses incurred by you, has been settled and the total amounts to be paid by us is Rs.5,10,142.00. Already you have received Rs.3,75,000.00. We have to pay the balance amount of Rs.1,35,142.00 to you in full settlement of your claims. Nothing is due from you and the amount of Rs.1,35,142.00/- will be paid by us to you on or before 31.01.1998. Yours failthfully, HEADMISTRESS ST.ANTONY'S HIGH SCHOOL Alavanthankulam 627 357." 14. Now the question that arises for my consideration is whether this should be construed as a promissory note. If it is construed as a promissory note, then obviously it is inadmissible in evidence, since it has not been stamped as required by law. 15. Yours failthfully, HEADMISTRESS ST.ANTONY'S HIGH SCHOOL Alavanthankulam 627 357." 14. Now the question that arises for my consideration is whether this should be construed as a promissory note. If it is construed as a promissory note, then obviously it is inadmissible in evidence, since it has not been stamped as required by law. 15. The learned counsel appearing for the appellant would lay particular stress on the decisions reported in CDJ 2004 MHC 1038 (S.Ameer V. Vivek Enterprises), CDJ 2006 MHC 641 (R.Ravindran V. M.Rajamanickam) and CDJ 1965 APHC 284 (Bahadurrinisa Begum V. Vasudev Naick and Others). The following propositions can be culled out from the foregoing rulings:- (i) Suit claim based on insufficiently stamped promissory note is unsustainable. (ii) Insufficiently stamped promissory notes cannot be validated by payment of penalty and such documents are inadmissible in evidence for any purpose in view of proviso to Section 35 of Indian Stamp Act. (iii) The promissory note does not become a bond merely because certain amount is payable to certain person and not made payable to order or bearer. 16. There can be no quarrel with the propositions advanced by the learned counsel appearing for he appellant. However, the moot question here is how to characterise Ex.A.1 document. The character of any document will have to be determined only with reference to the intention of the parties and the attendant circumstances. The appellant herein had entrusted certain contract works and the respondent herein had carried them out. It is seen that no formal agreement was entered into between the parties. A sum of Rs.3,75,000/- was paid to the respondent in all. There does not appear to have been issuance of receipts by the respondent for the sums received. Ex.A.1 is in letter-format, starting with 'Sir' and ending with 'Yours faithfully'. It is typed on the letter pad of the appellant. Even according to the appellant, the letter-pad is that of the school. The antecedent events are narrated. The liability is quantified and there is assurance to pay within a time-frame. In this background, I am not in a position to hold that Ex.A.1 can be construed as a promissory note. Of course the expression 'We' has been employed. Merely because the expression 'We' is found, that cannot absolve of her liability. The antecedent events are narrated. The liability is quantified and there is assurance to pay within a time-frame. In this background, I am not in a position to hold that Ex.A.1 can be construed as a promissory note. Of course the expression 'We' has been employed. Merely because the expression 'We' is found, that cannot absolve of her liability. The material portion occurring in Ex.A. 1 is as follows:- “We have to pay the balance amount of Rs.1,35,142.00 to you in full settlement of your claims. Nothing is due from you and the amount of Rs.1,35,142.00/- will be paid by us to you on or before 31.01.1998.” 17. The Courts below have concurrently rendered the finding that Ex.A.1 can only be construed as a letter of undertaking. I affirm the aid finding. That apart, the decision reported in (2003) 1 M.L.J. 656 (Sayambu Nadar V. Subramaniam), reinforces the stand of the respondent. The document in that case was also described as a promissory note. It read as follows: “thf;FWjp fld; gj;jpuk; (gpuhk;rhp Nehl;) Mapuj;jp njhs;shapuj;jp vz;gj;jp vl;lhk; tUlk; [_d; khjk; Mwhk; jpajp tbtPRtuk; tpy;ny[;fiyefh; Chpy; jhkrk; ek;gh; tPl;by; jhkrk; NtyhAjk; ngUkhs; ehlhh; kfd; V.Rg;ukzpak; Ngh;f;F. ehfh;Nfhtpy; tpy;ny[; nghpatpis Chpy; ghz;bad; njUtpy; 66-k; ek;gh; tPl;by; jhkrk; gyNtrKj;J ehlhh; kfd; Rak;G ehlhh; vOjpf;nfhLj;j thf;FWjp fld; gj;jpuk;. vd;dntd;why; ehd; 1987k; tUlk; brk;gh; khjk; gj;jhk; jpajp jhq;fsplk; MSk; 417k; ek;gh; yhhpf;F ];Ngah;ghh;l;];fs;(cjphp rhkhd;fs;) thq;f Ntz;ba tiff;Fk; vd;Dila FLk;g rk;ge;jkhd nryTf;Fkhf jhq;fsplk; nuhf;fk; fldhf thq;fpd &gha 5>000- ma;ahapuKk; nuhf;fk; ngw;Wf;nfhz;lgbahy; ,e;j tUlk; 1988 Mf];l; khjk; Mwhk; jpajpf;Fs; jhq;fsplk; jpUk;gje;J ,e;j (gpuhk;rhp Nehl;il) thf;FWjp fld; gj;jpuj;jpy; gw;Wr;r Pl;L vOjp jpUk;g ngw;Wf; nfhs;Ntd;. Nkw;gb mtjpf;Fs; ehd; jq;fSf;F juj;jtwpdhy; mjdhy; jq;fSf;Fz;lhFk; rfy e\;lq;fSf;Fk; Nrh;j;J Nkw;gb &gha 5>000- j;Jf;Fk; mjw;Fz;lhd tl;bAk; Nrh;j;J vd;dplk; t#ypj;J vLg;gjw;F ehDk; Nkw;gb MSk; ek;gh; yhhpAk; gb cj;jputhjpaha; jUtJk;khFk;." Even while construing the above document as an acknowledgement of debt and not as promissory note, it was held that the suit can still stand on the original cause of action. 18. In the case on hand, before filing the suit the respondent had issued notice to both the defendants. The suit notice was marked as Ex.A.3 dated 26.05.1998. While the first defendant had received the same, notice issued to the appellant was returned. The returned cover has been marked as Ex.A.5. 18. In the case on hand, before filing the suit the respondent had issued notice to both the defendants. The suit notice was marked as Ex.A.3 dated 26.05.1998. While the first defendant had received the same, notice issued to the appellant was returned. The returned cover has been marked as Ex.A.5. The appellant had given an explanation that when the notice was sought to be delivered, she was away from the campus and that is why it could not be served on her. The appellant was the headmistress, while the first defendant was the Correspondent. Obviously the appellant would have had the knowledge of the issuance of the notice by the plaintiff. The suit came to be filed only on 10.11.2000. The appellant had not issued any reply or communication to the respondent. It is admitted that opening ceremony of the new building was held on 08.12.1997. On the said date, the appellant was invited and Ex.A.6 is the photograph which shows that the respondent was honoured. If the respondent had abandoned the works mid-way, he would not have been invited or honoured. But interestingly, Mr.Jose who is said to be the other contractor to whom the balance work was entrusted was not present. The appellant was obviously a part of the Diocese but the account books were not produced. I refer to these aspects only for the purpose of showing that even if Ex.A.1 is eschewed out of consideration, the respondent herein can still fall back on the original cause of action for sustaining the impugned Judgment and Decree. 19. In view of the foregoing discussion, the substantial question of law is answered against the appellant and the second appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.