1. The view taken by the Court below in this case is correct. The plaintiff sued on a hundi bearing a one-anna stamp which was not cancelled. On the case coming before the Judge of the Small Cause Court he held quite rightly that the hundi was not receivable in evidence under the provisions of the Stamy Act and he impounded it and sent it to the Collector. The Collector imposed a penalty and improperly endorsed the document as sufficiently stamped, presumably purporting to act under Section 40 of the Act. Section 40 expressly excludes instruments chargeable with a duty of one anna. The Collector's certificate, therefore, was not a certificate given in accordance with the provisions of the section, and the conclusive presumption laid down in Sub-section (2) does not apply to it. I have been pressed with the ruling in Girdari Das v. Jagan Nath (1881) 3 All 115, but that was a case in which the document was voluntarily brought to the Collector to have the stamp duty appraised under a provision which corresponds to Section 31 of the present Stamp Act. The provisions applicable are not identical with those of Section 40.
2. It has also been urged that under Section 120 of the Negotiable Instruments Act it was not open to the opposite party to contest the validity of the deed, but the condition precedent to the application of Section 120 is that there must be a properly stamped bill of exchange before the Court at which the Court is entitled to look. An unstamped document, unless it is admissible under some special provision of law, is mere waste paper for the purpose of judicial proceedings.
3. The third plea raised is that the plaintiff ought to have been allowed to sue for the debt independently of the hundi, but in this case his cause of auction, as set out in the plaint, was based on the hundi and on that alone. I, therefore, dismiss this application with costs.