1. This is a reference under Section 61(1), Stamp Act, by an Inspector of Stamps who has been invested with the powers of a Collector under a Government notification. The facts which have led to this reference may be briefly stated. Suit No. 23 of 1938 was filed in the Court of the Judge, Small Cause Court, Agra, and one of the papers on which reliance was placed by a party was paper No. 93A. This document purports to be an agreement entered into between the Radha Swami Sat Sang Sabha, Dayalbagh Agra, who were the plaintiffs in the suit and Raj Narain, son of Lala Janki Das, resident of Dayalbagh Agra, who was a defendant in the suit. The Inspector of Stamps in the course of his inspection came across this document and he was of the opinion that the document was a bond and he, therefore, requested the learned Small Cause Court Judge to impound the document and realise the deficiency in stamp and penalty. He was of the view that the document ought t6 have borne a stamp duty of Rs. 1014-14-0 and not a stamp duty of 12 annas as the document actually bore and that further a penalty of Rs. 10,142-8-0 must be realised.
2. On receipt of this report the learned Small Cause Court Judge went into the matter himself and he came to the conclusion on 30th August 1939 that the document in question was an agreement and a stamp duty of 12 annas was sufficient and that such duty had already been paid. The Inspector of Stamps stuck to his former view and has, therefore, referred the matter to us. Raj Narain, the executant of the document in question, was indebted to the Radha Swami Sat Sang Sabha, and he executed four promissory notes, one on 6th October 1932 for Rs. 76,000 and three on 1st June 1933 in the sums of Rs. 13,045-9-6, Rs. 11,329-2-6 and Rs. 35,000. These sums of money were due from the defendant, Raj Narain to the Sabha on account of share of loss in Salwood business, on account of money received in connexion with Salwood business, on account of investment in the loading and unloading contract with the North-Western Railway and on account of loan for the purchase of landed property in Nepal Terai. All these promissory notes bore a certain rate of interest. On nth July 1933, Raj Narain and the Sabha entered into a partnership and Raj Narain executed an agreement by which he made arrangements for the payment of the dues on the basis of the four promissory notes in a certain manner and it was also provided that if the conditions laid down in the agreement were faithfully carried out then interest on the loan of Rs. 76,000 would be remitted and interest on the other three loans would be reduced.
3. The question which we have got to consider is whether this agreement dated 11th July 1933 is an agreement pure and simple or is a bond as was contended by the Inspector of Stamps and as is contended by the Standing Counsel before us. In support of the Crown, our attention has been drawn to the case in Munna Lal v. Maula Bakhsh : AIR1939All205 . One of us was a party to the said decision and therein the Bench held that the document in question in that case was a bond within the meaning of Section 2(5)(b), Stamp Act, because it was attested by witnesses, was not payable to order or bearer and the first party had obliged himself under it to pay money to the second party. The learned Standing Counsel contends that the same requisites are to be found in the present case and therefore the document in question ought to be treated as a bond. In the authority to which reference has been made by us there was no pre-existing loan and if there was any preexisting liability that was wiped out by the document executed by the debtor in favour of the creditor. There was either a fresh contract without any antecedent contract at all or there was a novation of the contract and the old contract was extinguished. In the case before us, the four promissory notes remained outstanding and we know that, as a matter of fact, three suits were filed on the basis of the four promissory notes, one of the suits consolidating two promissory notes and the other two suits were upon the basis of the other two promissory notes. In every case one has to look at the intention of the parties and we find that in the present case the intention of the parties was not to extinguish the old promissory notes but to keep them alive and the document only provided for the method of payment and for reduction of interest under certain contingencies. In this view of the matter, we think that the view taken by the learned Small Cause Court Judge at Agra was correct, and under Section 61(2), Stamp Act, we make the declaration that the document in question was sufficiently stamped.