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Mrs. K. Sudersanam Vs. S. Venkatarao - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 203 of 1960
Judge
Reported inAIR1963AP442
ActsStamp Act, 1899 - Sections 12 and 36; Hyderabad Money Lenders Act, 1349 F - Sections 2; Debt Law
AppellantMrs. K. Sudersanam
RespondentS. Venkatarao
Appellant AdvocateG.S. Purushotham, Adv.
Respondent AdvocateG. Bhaskara Rao, Adv.
DispositionRevision dismissed
Excerpt:
.....not being properly stamped cannot be considered at appellate stage by reason of section 36 - held, promissory note duly stamped and to betaken into evidence in suit. - all india services act, 1951. sections 32(c) (as amended by section 3 of amendment act, 2005] & 10 & general clauses act, 1897, section 6: [g.s. singhvi, cj, dr.g. yethirajulu, ramesh ranganathan, g.bhavani prasad, c.v. nagarjuna reddy, jj] exemption of building from applicability of provisions of act held, (per majority) section 32(c) of the act provides that the provisions of the act shall not apply to any building the rent of which as on the date of the commencement of the a.p. buildings ( lease, rent and eviction) control (amendment) act 2005 exceeds rs.3,500/- per month in the areas covered by the municipal..........not be used again.the decision in virabhadrappa v. bhimaji, ilr 28 bom 432 was cited before the learned judge. in that decision, it had been held that the mere drawing of two parallel lines without more over a receipt stamp affixed to an instrument did not have effect of cancelling it as requited by the stamp act. the learned judge (narasimham, j.) pointed out that in a later decision of the bombay high court in in re tata iron and steel co., ltd., air 1928 bom 80 another division bench of the same high court expressly dissented from the earlier decision in ilr 28 bom 432 referred to the decision of the allahabad high court in ilr 41 all 169 : (air 1919 all 196) and concluded that it was a matter of opinion to be decided on the facts of each case. the learned judge (narasimham, j.).....
Judgment:
ORDER

Anantanarayana Ayyar, J.

1. In the Court of the Chief Judge, Small Causes, Hyderabad, the sole plaintiff S. Venkat Rao filed a suit (S. C. S. No. 135/2 of 1959) against the sole defendant Mrs. K. Sudersanam on a promissory note which had been executed by the defendant on 12-3-1956 for a sum of Rs. 1,000/-. The defendant contested the suit on various grounds. The learned Chief Judge awarded a decree against the defendant as prayed for. The defendant thereupon filed this revision, petition against the said judgment and decree.

2. The main contentions in the plaint were as follows:

The defendant was a teacher in a Railway school and was known to the plaintiff's wife for a long time. The defendant approached the plaintiff for a loan of Rs. 1,600/- and the plaintiff accordingly agreed. The defendant herself wrote in urdu the promissory note (Ex. A-1) and receipt for a sum of Rs. 1,600/-. After that, the plain-tiff found that he had only Rs. 1,000/- and had advanced that sum. At the instance of the defendant, the plaintiff struck out the figure of Rs. 1,600/- and noted in Telugu, the figure of Rs. 1,000/- which was actually the amount being advanced as loan. Then the defendant herself wrote Rs. 1,000/- in figures and signed in the promissory note.

3. In her written statement, the defendant contended as follows: She obtained a loan of Rs. 200/- from the plaintiff in 1952 and paid large sums which amounted to much more than the interest and the principal. Still, the plaintiff represented that a sum of Rs. 800/- was still due from her and made her execute the promissory note and receipt for double that sum namely. Rs. 1,600/-. It is true that she put the figure of Rs. 1,000/- in the promissory note. After the execution of the promissory note, she made payments amounting to Rs. 2,500/-. The plaintiff was a money lender and had not complied with the provisions of the Hyderabad Money Lenders' Act.

4. The plaintiff deposed as P. W. 1 and also examined P. Ws. 2 and 3, who were attestors of the promissory note and who were working as co-teachers of the defendant. The defendant deposed as D. W. 1 in support of her contentions and examined besides, two other witnesses. D. W. 1 deposed that she used to carry meals to teachers and students of the Railway School and that the plaintiff used to come there for collecting amount due to him from the teachers and that she (D. W. 2) had also taken a loan of Rs. 50/- and paid interest to him. D. W. 2 said that she had never taken any receipts from the plaintiff for payments which she (D. W. 2) made and that she did not even execute any document for the loan which she took from the plaintiff. D. W. 3 is a teacher in the Railway School and said that he obtained a loan of Rs. 100/- from the plaintiff without executing any document and also made payments without taking receipt.

5. The learned Chief Judge believed the plaintiff's case in preference to the defendant's case after dealing with the various contentions which had been raised on behalf of the defendant. Regarding the witnesses, he made an observation as follows :-

'After considering the evidence and keeping in view the demeanour of the witnesses in the witness-box, I am of opinion that the plaintiff's evidence is reliable and rings as true while the defendant's evidence is not reliable. The two marginal witnesses (P. Ws. 2 and 3) of the promissory note are co-teachers of the defendant and any strained relations also are not alleged and there is no reason for disbelieving them when there are no material discrepancies in their evidence. The defendant has given a self-contradictory statement faltering at every step.'

I see no sufficient reason to disagree with this finding regarding the oral evidence especially as it is based partly on demeanour which the learned Chief Judge was in a position to observe.

6. I deal below with the various contentions raised by the learned Advocate for the petitioner-defendant, Shri G.S. Purushotam.

7. The learned Advocate has contended that the promissory note has not been properly stamped and that, therefore, it cannot be lawfully admitted in evidence. In Annamalai v. Veerappa, : AIR1956SC12 the Supreme Court observed as follows: (Page 14)

'There is also a further difficulty in the way of the appellants and it is that the document having been admitted in evidence such admission could not be called in question at any stage of the proceedings' on the ground that it had not been duly stamped. The provisions of Section 36, Stamp Act preclude the appellants from raising any objection against the admission of the document at this stage and the appellants are not entitled now to urge this objection before us.'

Section 36 of the Stamp Act runs as follows:-

'Where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61 be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.'

Section 61 of the Stamp Act does not apply to the present case. In Basavaiah Naidu v. Venkateswarlu, 1956 Andh WR 490 : (AIR 1957 Andh Pra 1022), Viswanatha Sastri, J., observed as follows: (at p. 491 (of Andh WR) : (at p. 1022 of AIR)

'Section 36 would apply even though the document had been wrongly admitted or admitted without objection ......... If the objection as to the defective stamping is not taken or is overruled and the document is admitted in evidence, the matter stops there and neither the parties nor the Court can thereafter agitate the question of its admissibility.'

8. In Simhadri v. Varalakshmi, (1962) 1 Andh LT 247 : (AIR 1962 Andh Pra 398) my learned brother, Satyanarayana Raju, J., held that when a promissory note had on it the endorsement as required by Order 13, Rule 4 C. P. C. and Rule 79 of the Civil Rules of Practice, the admission of the document could not be called in question at any stage of the proceedings for want of sufficient stamp by reason of the provisions of Section 36 of the Stamp Act.

9. In view of the above decisions, I find that in this case the objection as to the admission of the promissory note on account of its not being properly stamped cannot be considered by this Court by reason of Section 36 of the Stamp Act.

10. Even otherwise the objection is not tenable.

11. The contention of Shri Purushottam for the petitioner is that two long parallel lines are put on the three stamps on the pronote (apart from the signed stamp) and that this docs not constitute sufficient cancellation.

12. In Mela Ram v. Brij Lal, AIR 1920 Lah 374 it was held that the question whether or not a stamp has been effectually cancelled is one purely of fact to be decided by an examination of the stamp itself. On the facts of that case, it was also held that the cancellation of a stamp by drawing diagonal lines across its face was sufficient within the meaning of Section 12 of the Stamp Act.

13. In Motiram Nathomal v. Mangharam Tirathdas, AIR 1942 Sind 130, it was held that the question whether a stamp has been sufficiently cancelled must always be a question of fact. ON the facts of that case, it was held that the writing of figures 28/8 on the stamp was sufficient cancellation though neither the name nor the initials of the executant or of any other person was written on the stamp.

14. In Firm Kishori Lal Banarsi Das v. Firm Ram Lal Tekehand, AIR 1921 Lah 120 it was held that drawing of lines across a stamp was as effectual as any other mode of cancellation provided that from what had been done the intention to cancel was clear.

15. In Mahadeo Kori v. Sheoraj Ram Teli, ILR 41 All 169 : (AIR 1919 All 196) it was held that a stamp may be effectually cancelled by merely drawing a line across it.

16. In A. Narayan Reddy v. J. Sarojini Devi, Unreported decision of this Court dated 22-6-1962 in C. R. P. 351 of 1959 : (reported in : AIR1963AP378 ), the relevant facts were as follows:

A promissory note was stamped with two one anna stamps. One stamp bore the signature of the executant, Sarojini Devi and the date of execution of the promissory note. The other stamp was affixed in a position on the promissory note which was directly above the first stamp and was only crossed by horizontal line. A question arose as to whether the stamp bearing the horizontal line was cancelled in an effectual manner as required by law. My learned brother Narasimham, J., relied on the decisions in ILR 41 All 169 : (AIR 1919 All 196) and J.N. Ezekiel v. E. Mordecai, AIR 1937 Rang 408 and held that a perusal of the stamp in question in that case left no doubt that it had been cancelled in an effectual manner so that it could not be used again.

The decision in Virabhadrappa v. Bhimaji, ILR 28 Bom 432 was cited before the learned Judge. In that decision, it had been held that the mere drawing of two parallel lines without more over a receipt stamp affixed to an instrument did not have effect of cancelling it as requited by the Stamp Act. The learned Judge (Narasimham, J.) pointed out that in a later decision of the Bombay High Court in In re Tata Iron and Steel Co., Ltd., AIR 1928 Bom 80 another Division Bench of the same High Court expressly dissented from the earlier decision in ILR 28 Bom 432 referred to the decision of the Allahabad High Court in ILR 41 All 169 : (AIR 1919 All 196) and concluded that it was a matter of opinion to be decided on the facts of each case. The learned Judge (Narasimham, J.) also distinguished the earlier decision of the Rangoon High Court in U. Kyaw v. Hari Dutt, AIR 1934 Rang 364 on the ground that the observations therein were incidental and did not appear to have really been formulated for the decision of that case and even so a contrary view was expressed by the same Court in AIR 1937 Rang 408.

17. In AIR 1928 Bom 80 the learned Judges of the Bombay High Court have observed as follows:- (at p. 89).

'There is no doubt a decision of a Bench of this Court in ILR 28 Bom 432 which contains this dictum: 'Two parallel lines drawn over a stamp are not sufficient to carry out that object (of the legislature), because mere lines would not be effective for the purpose in view'. That is the ground of the decision and, with all respect, I cannot conceive that I am bound by it. I am glad to be able to come to that conclusion, for in this case there can be no doubt whatever that the persons who cancelled these stamps did so in the bona fide belief that they were doing all that wan necessary, and the means which they adopted are those which are employed by thousands of persons in commercial transactions ........................... Again I must point out that it is a question of fact in such case, and I am entitled to my own opinion whatever dicta may be found in the cases ............ In ILR 41 All 169 : (AIR 1919 All 196) the Allahabad High Court have held that single line drawe across the stamp is sufficient.............'

Finally, Narasimham, J., held that the stamp concerned in the case before him was cancelled as required by law. In the present rase, the promissory note is affixed with four stamps and the position is substantially similar to the position regarding the higher stamp in the promissory note concerned in the un-reported judgment in C. R. P. No. 351 of 1959. I respectfully follow the view expressed by my learned brother, Narasimham, J., and also in the other decisions already referred to above namely, that each case had to be derided on its own particular facts.

18. The decision in Babulal v. Darga Prasad, AIR 1940 Oudh 308 relates to a case where there were two stamps affixed to the promissory note concerned. There was thumb-mark of executant on the stamp to the right side but there was no cancellation mark at all on the stamp affixed to the left side. It was held that the stamp on the left side was not duly cancelled as required by law and that, therefore, the promissory note was not sufficiently stamped and inadmissible in evidence. That decision does nut apply to the facts of the present case where there is signature on one stamp and two parallel lines drawn on the other three stamps.

19. In the present case, a perusal of the promissory note in question would go to show that the intention to cancel is clear from the drawing of the two parallel lines on the three, stamps. I therefore, hold that the three stamps have been duly cancelled as required by the provisions of Section 12 of the Stamp Act and that the drawing of the two parallel lines on the three stamps constitute sufficient cancellation. Consequently, the promissory note was properly stamped and it is admissible in evidence. The contention of the learned Advocate for the petitioner is not tenable.

20. The next contention urged by the learned Counsel for the petitioner is that no decree can be granted on the promissory note as it contained alteration. On this question, the learned Chief Judge concluded on the basis of oral evidence, relying to a certain extent on the demeanour of the witnesses which he observed in the witness-box for weighing the evidence, that the alteration in the promissory note and the receipt was partly made by the defendant herself and partly at the instance of the defendant. I see no reason to disagree with the finding of the learned Chief Judge, which is based on an appreciation of the oral evidence. I find that this contention is not tenable.

21. Another contention raised by the learned Advocate for the petitioner-defendant is that the plaintiff was a money-lender and that the suit claim was not tenable as he had not complied with the provisions of the Hyderabad Money Lenders' Act (V of 1349 F). On this contention also, the learned Chief Judge has discussed the evidence and chosen to disbelieve the case of the defendant and believe the case of the plaintiff that he was not a money lender. The learned Chief Judge observed as follows: -

'Defendant's vague evidence that plaintiff had given loans to some other persons is not sufficient to hold that he is a professional money lender.'

22. In Varalaxmi v. Syed Kasim Hussain, (1962) 2 Andh WR 137 a Bench of this Court held that in order to fall within the definition of 'money-lender' it was not enough merely to show that a man had, on several occasions, lent money at remunerative rates of interest and that there must be a certain degree of system and continuity about the transactions and that the definition of 'money lender' in the Act did not include those who advanced moneys casually. In this case, there is no satisfactory evidence that the plaintiff was a 'money lender' as defined in the Act. On this point also, I find no room to disagree with the finding of the learned Chief Judge. This contention is also not tenable on the evidence.

23. In the result, I dismiss the revision petition with costs.


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