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D.J. Belekar Vs. Rambhau Bhagwanji Gorale - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 389 of 1975
Judge
Reported inAIR1981Bom45
ActsBombay Stamp Act, 1958 - Sections 2(1) and 34 - Schedule - Article 1; Indian Stamp Act - Sections 2(14), 2(33), 35 and 36
AppellantD.J. Belekar
RespondentRambhau Bhagwanji Gorale
Appellant AdvocateP.N. Kendurkar, Adv.
Respondent AdvocateS.M. Sonare, Adv.
Excerpt:
.....of a loan' clearly show that if was not merely a receipt of money. 9. on merits also this revision application deserves to..........there is absolutelyno reference to the deposit made by the opponent with the society through the revisionapplicant on or about 29-4-1967. admittedlyno writing was executed in favour of theopponent by the revision applicant on orabout 29-4-1967, when allegedly he receivedthe amount for depositing with the society.his contention that he executed the receiptex. 38 as advised by shri girjapure, thethen president of the society is falsified byshri girjapure himself. shri girjapure expressed ignorance about the transaction between the revision applicant and the opponent and categorically stated that he did notgive any advice to the revision applicantabout execution of the receipt ex. 38.moreover, revision applicant's assertion inhis evidence that he executed the receiptex. 38 at the instance.....
Judgment:
ORDER

1. By this revision application the revision applicant seeks to challenge the decree passed against him by the Judge, Small Causes Court, Nagpur on 20th Feb., 1975 in Civil Suit No. 1357 of 1972.

2. The plaintiff, present opponent, filed the suit for recovering Rs. 1,500/- advanced by him to the revision applicant on 11-7-1969 under the receipt Ex. 38. According to the opponent, he was on friendly terms with the revision applicant as both of them were working in the office of the Zilla Parishad at Nagpur. It was his case that the applicant who was in need of money obtained Rs. 1,500/- on 11-7-1969 promising to pay back the amount at an early date but failed to do so. The revision applicant admitted in his written statement that he took Rs. 1,500/- from the opponent on 11-7-1969 and passed a receipt to that effect. According to him, 'however, he took Rupees 1,500/- each from 10 different persons in chiding the opponent and deposited these amounts in their names in the Abhaya Griha Nirman Co-operative Society, Ltd., as the Society was in need of money to honour an agreement for purchase of a field. He also contended that the amount deposited by the opponent was repaid by the Society on 24-11-1969, in pursuance to his letter dated 5-11-1969 addressed to the Honorary Secretary of the said Society. The revision applicant, however, subsequently amended his written statement and contended that he received the amount on 29-4-1967 or thereabout and not on 11-7-1969 and that the receipt dated 11-7-1969 was passed by him in favour of the opponent at the instance of the latter after about two years. He maintained that no transaction took place between him and the opponent on 11-7-1969.

3. The receipt which the revision applicant admittedly passed in favour of the opponent on 11-7-1969 was not stamped. It was produced along with the List Ex. 22, on 16-10-1973 and on the very day the trial Court passed an order that the document was a receipt and that the plaintiff should pay stamp duty and penalty in all Rs. 1.65. The stamp ditty and the penalty were paid on the same day as directed. Being aggrieved by this order, the revision applicant tiled Civil Revision Appln. No. 721/1974 in this Court. Mr. P. N. Kendurkar, learned counsel for the revision applicant is not sure whether this revision application was withdrawn or was dismissed but it appears from the order passed by the learned trial Judge on the application Ex. 36 that the revision application was dismissed. The learned trial Judge also rejected the application filed by the revision applicant praying that the document should not be admitted in evidence, should not be exhibited and acted upon. The receipt was thereafter exhibited as Ex. 38, and was referred to by the parties in their evidence.

4. The learned trial Judge, relying on the receipt Ex. 38 and the evidence led by the applicant and after consideration of the entire oral and documentary evidence, led by the parties, held that the Society transaction had nothing to do with the transaction dated 11-7-1969 between the parties to the suit. He also observed that the revision applicant could not give satisfactory explanation as to why he executed the receipt Ex. 38 on 11-7-1969, acknowledging the receipt of Rs. 1,500/-. Consequently he decreed the suit and being aggrieved, the defendant present revision applicant has filed this revision application.

5. Shri Kendurkar for the revision applicant contended that the receipt Ex. 38 is an acknowledgment of debt and is thus an instrument within the meaning of Section 2(1) of the Bombay Stamp Act. He further contended that as the instrument was not stamped it was inadmissible in evidence in view of Section 34 of the Bombay Stamp Act, 1958. Shri Sonare, learned Counsel for the opponent tried to contend that the document Ex. 38 is a receipt pure and simple and hence it is excluded from the definition of an instrument given in Section 2(1) of the Bombay Stamp Act.

6. The term 'receipt' is not defined in the Bombay Stamp Act. No stamp duty is prescribed under that Act for a receipt Article 1 of Schedule I of the Bombay Stamp Act provides for proper stamp duty for an acknowledgment of a debt exceeding twenty rupees in amount or value written or signed by, or on behalf of a debtor in order to supply evidence of such debt in any book (other than a banker's pass book) or on a separate piece of paper when such book or paper is left in the creditor's possession : Provided that such acknowledgment does not contain any promise to pay the debt or any stipulation to pay interest or to deliver any goods or other property. A receipt of money, therefore, would be chargeable to stamp duty under the Bombay Stamp Act only if it answers the description of an acknowledgement given in Article 1 of Schedule I. If the receipt acknowledges a debt exceeding twenty rupees and if this acknowledgement is written on a piece of paper and is signed by the debtor and the paper is given in possession of the creditor, then such a receipt would be chargeable to stamp duty under Article 1 of Schedule I of the Bombay Stamp Act.

7. Under the Indian Stump Act the term 'acknowledgement' is nut defined but Section 2(23) contains a definition of the term 'receipt'. Section 35 of the Indian Stamp Act also lays down inter alia that an instrument not duly stamped is inadmissible in evidence. The definition of the term 'instrument' given in Section 2 (14) of the Indian Stamp Act is expressly analogous to the first part of the definition of the said term in Section 2(1) of the Bombay Stamp Act. The said provision defines 'instrument' as including every document by which any right or liability is, or purports to be, created, transferred limited, extended, extinguished or recorded. Hence even under the Indian Stamp Act, if the receipt answers the description of the document included in the definition of instrument given in Section 2(14) of the Indian Stamp Act, and if it is unstamped or not properly stamped, then it would be inadmissible in evidence in view of Section 35 of the Indian Stamp Act.

8. It is an admitted position that the revision applicant executed the receipt Ex. 38. It is also an admitted position that this document is signed by the revision applicant and was handed over by him to the opponent. The material question, about the nature of the document that survives for consideration, therefore, is, whether the document created, transferred, limited, extended, extinguished or recorded any right or liability. The document Ex. 38 which is styled as a receipt contains an acknowledgement that the revision applicant received Rs. 1,500/- from the opponent by way of a loan. The words 'by way of a loan' clearly show that if was not merely a receipt of money. These words lead to an inference that this document created and recorded a liability against the revision applicant in respect of Rs. 1,500/- received by him from the opponent. The document, therefore, is an instrument within the meaning of Section 2(1) of the Bombay Stamp Act. As admittedly it was not stamped at all, it was hit by Section 34 of the Bombay Stamp Act. But as mentioned above, pursuant to a judicial order this document was consciously exhibited, was admitted in evidence and was referred to by the parties at the trial. Shri Sonare, therefore, rightly contended that the admission of the document in evidence cannot be called in question in this revision application. In support of this contention Shri Sonare placed reliance on the decision in Javer Chand v. Pukbraj Surana : [1962]2SCR333 . In that case two unstamped hundis were tendered in evidence. Witnesses for the defendant were examined and cross-examined with reference to the terms of the hundis which were exhibited and hence the trial Judge observed that the provisions of Section 36 of the Indian Stamp Act came into play. The High Court held that the plaintiff could not take advantage of the provisions of Section 36 because the admission of the two hundis in evidence was a pure mistake. Their Lordships of the Supreme Court, however, found that the High Court misdirected itself in its view of the provisions under Section 36 of the Stamp Act and observed as follows :

'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 effect. 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. 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.'

This decision WHS followed by Division Bench of this Court in K. I. Suratwala and Co. v. Mahmud Bidi Works, Sholapur : AIR1972Bom238 . The position, therefore, that emerges is that it is not open to the revision applicant to raise the question about the admissibility of Ex. 38. As observed by their Lordships of the Supreme Court, the matter is closed between the parties.

9. On merits also this revision application deserves to fail. As rightly observed by the learned trial Judge, the transaction under which Rs. 1,500/- were deposited by the opponent with Abhaya Griha Nirman Society, Nagpur on or about 29-4-1967 and the transaction evidenced by the receipt Ex. 38 arc two different transactions. It is true that Rs. 1,500/- were deposited by the opponent with the Society through the revision applicant but it was deposited in the name of opponent himself. It is thus an admitted position that this amount was returned by the Society to the opponent directly on 24-11-1969. There was, therefore, no earthly reason for the revision applicant to execute the receipt dated 11-7-1969, which in unmistakable terms states that Rs. 1,500/-were received by the revision applicant himself by way of a loan. There is absolutelyno reference to the deposit made by the opponent with the society through the revisionapplicant on or about 29-4-1967. Admittedlyno writing was executed in favour of theopponent by the revision applicant on orabout 29-4-1967, when allegedly he receivedthe amount for depositing with the Society.His contention that he executed the receiptEx. 38 as advised by Shri Girjapure, thethen President of the Society is falsified byShri Girjapure himself. Shri Girjapure expressed ignorance about the transaction between the revision applicant and the opponent and categorically stated that he did notgive any advice to the revision applicantabout execution of the receipt Ex. 38.Moreover, revision applicant's assertion inhis evidence that he executed the receiptEx. 38 at the instance of Shri Girjapure iscontrary to what he stated in the writtenstatement. In the written statement, revisionapplicant contended that he executed the receipt at the instance of the opponent. It isdear that the learned trial Judge took acorrect view of the matter. The revision application, therefore, fails and is dismissedwith costs.

10. Revision dismissed.


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