Skip to content


Kartey Singh Vs. Iftikhar Ahmad - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2218 of 1978
Judge
Reported inAIR1981All386
ActsNegotiable Instruments Act, 1881 - Sections 4 and 87; Stamp Act, 1899 - Sections 2(5) and 35; Code of Civil Procedure (CPC) , 1908 - Sections 100 and 101
AppellantKartey Singh
Respondentiftikhar Ahmad
Appellant AdvocateG.P. Bhargava, Adv.
Respondent AdvocateR.H. Zaidi, Adv.
DispositionAppeal dismissed
Excerpt:
.....by error of finding on law. (ii) scope and application of material alteration - section 87 of negotiable instruments act,1881 and sections 2 (5) of stamp act, 1899 - deficient in stamp duty on bond - deficiency subsequently corrected after execution - bond is admissible in evidence - section 87of negotiable instrument not attracted in bond. - - it was further held that the plaintiff could not establish by reliable evidence that he had advanced rs. learned counsel urged that in view of the proviso to section 100(5) of the code of civil procedure, the court could hear the appeal on any other substantial question of law not formulated earlier if it was satisfied that the case involved such a question. it is well settled that this court in second appeal cannot interfere with a..........to be considered in this case is whether the document in question is a bond or a promissory note, promissory note has been defined in section 4 of the act as follows : '4. 'promissory note'. -- a 'promissory note' is an instrument in writing (not being a bank-note or a currency-note) containing an unconditional undertaking, signed by the maker, to pay a certain sum of money only to, or to the order of a certain person, or to the bearer of the instrument.'the 'bond' has been defined in section 2(5) of the stamp act as follows : '(5) 'bond' -- 'bond' includes -- (a) any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a speficied act is performed, or is not performed as the case may be : (b) any instrument.....
Judgment:

Amitav Banerji, J.

1. This is a second appeal by the defendant.Plaintiff's suit for recovery of Rs. 8,000/- on the basis of promissory note and the receipt dated 25th March, 1972 was dismissed by the trial court. The trial court held that there were material alterations in the promissory note, inasmuch as the refugee relief stamp was subsequently affixed and was not properly cancelled. The promissory note and the receipt were insufficiently stamped, and that the pronote was a forged document. It was further held that the plaintiff could not establish by reliable evidence that he had advanced Rs. 5,000/- to the defendant on the 25th March, 1972. On appeal, the court below held that the instrument in question was a bond and not a promissorynote and that the provisions of Section 87 of the Negotiable Instruments Act had no application to the bond. The court below further held that the amount had been advanced and nothing had been paid by the defendant. It further held that the promissory note was not a forged document. The appeal of the plaintiff was allowed and the suit was decreed with costs throughout.

2. The following two substantial questions of law were framed at the time of admission of the appeal :

1. Whether the pronote and receipt were void in view of the provisions contained in Section 87 of the Negotiable Instruments Act

2. Whether the pronote and receipt could not be read in evidence because of the provisions contained in Section 35 of the Indian Stamp Act

3. Mr. G. P. Bhargava, learned counsel for the appellant, contended that apart from the above two questions a third question also arose in the case viz. whether on the facts and the circumstances of the case it was established that the promissory note was a forged document. Learned counsel urged that in view of the proviso to Section 100(5) of the Code of Civil Procedure, the court could hear the appeal on any other substantial question of law not formulated earlier if it was satisfied that the case involved such a question. The question whether the document was a forged document or not is a question of fact. The trial court held that the document was a forged document. The court below set aside that finding. Both the courts have considered the evidence. It is well settled that this Court in second appeal cannot interfere with a finding of fact howsoever grossly erroneous it may seem to be unless it can be shown that the finding is vitiated by error of law or procedure. Mr. Bhargava referred to a recent decision of their Lordships of the Supreme Court in the case of Madan Lal v. Gopi (AIR 1980 SC 1754) to urge that when the court below ignored the weight of preponderating circumstances and allowed their judgments to be influenced bv inconsequential matters, the High Court would be justified in reappreciating the evidence and in coming to its own independent conclusions. The point in controversy in the above case whether one Mansaram was in a fit state of mindwhen he executed the deed of adoption. Their Lordships observed that this was substantially a question of fact but the courts below ignored the weight of preponderating circumstances on the record and allowed their judgment to be influenced by inconsequential matters. Mr. Bhargava's contention was that the instrument in question was executed in the year 1972 and it bore revenue stamps of the year 1961 and had been affixed with refugee relife stamp which came into circulation after the alleged date of the execution of the instrument. It was a wholly got up document and in any event had been ante-dated and the court below had not taken into consideration the attending circumstances and its finding on the question of forgery was patently erroneous. I have heard Mr. R. H. Zaidi, learned counsel for the respondent also on this point and I think it will be appropriate to consider this point later.

4. I will now consider the first of the two substantial questions of law framed at the time of admission of the appeal. The promissory note is said to have been executed on the 25th Mar. 1972. The revenue stamps affixed on the promissory note and the receipt were first issued on 12th September, 1961. These were executed on printed forms written in Urdu, script. The entire writing therein is also in Urdu. There four revenue stamps were affixed on the promissory note and one on the receipt. There was one refugee relief stamp each affixed on the promissory note and the receipt. The relevant words of the promissory note are as follows:

'Inayat Farmai Janab Iftikhar Ahmad Pesar Ayyub Hasan Sakin Matoda Pargana Jauli Jansath baad Ram Ram Aanki joki mublig 5000 Roopaya hotey hain bazaroorat kharch khangi nakad aap sey karz liye hain mubligan mazkoora bala may sood bahisab do roopya saikra feesadi mahvar indul talab aap ko ada kiye jain gey lihaza yah rukha bataur promissory note ke likh diya ki sanad ho aur wakt zaroorat ke kaam aavey.

Tahreer tareekh Nishan Anmitha Kartey Singh pesar Bakhtawar Singh. Gavah Bhopal Singh Gavah Ratan Singh Shabbir Ahmad Tahreer Kuninda.'

The plaintiff's contention is that the above document is a Bond as definedin Section 2(5)(b) of the Stamp Act. A 'Bond' is not a negotiable instrument and consequently the provisions of Section 87 of the Negotiable Instruments Act (hereinafter referred to as the Act) are not applicable to it. The stand taken by the defendant on the contrary in this appeal is that the document is a negotiable instrument within the meaning of Section 13 of the Act and is a promissory note as defined in Section 4 of the Act. Since the refugee relief stamps were not affixed on the date of the execution of the instrument, the affixation of the same subsequently would amount to material alteration of the instrument within the meaning of Section 87 of the Act. Section 87 of the Act reads :

'87. Effect of material alteration --Any material alteration of a negotiable instumem renders the same void as against any one who is party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties :

Alteration by indorsee--and any such alteration, if made by an indorsee, discharges his indorser from all liability to him in respect of the consideration thereof.

The provisions of this section are subject to those of Sections 20, 49, 86 and 125.'

5. The principal question to be considered in this case is whether the document in question is a Bond or a promissory note, promissory note has been defined in Section 4 of the Act as follows :

'4. 'Promissory note'. -- A 'promissory note' is an instrument in writing (not being a bank-note or a currency-note) containing an unconditional undertaking, signed by the maker, to pay a certain sum of money only to, or to the order of a certain person, or to the bearer of the instrument.'

The 'Bond' has been defined in Section 2(5) of the Stamp Act as follows :

'(5) 'Bond' -- 'Bond' includes --

(a) any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a speficied act is performed, or is not performed as the case may be :

(b) any instrument attested by a witness and not payable to order orbearer, whereby a person obliges himself to pay money to another; and

(c) any instrument so attested, whereby a person obliges himself to deliver grain or other agricultural produce to another.

It will also be relevant to notice the definition of the negotiable instrument in Section 13 of the Act :

'13 'Negotiable instrument' -- (1) A 'negotiable instrument' means a promissory note bill of exchange or cheque payable either to order or to bearer.

Explanation (i) A promissory note, bill of exchange or cheque is payable to order which is expressed to be so payable or which is expressed to be payable to a particular person and does not contain words prohibiting transfer or indicating an intention that it shall not be transferable.'

Explanations (ii) & (iii) and Sub-section (2) are not relevant, hence omitted.

6. The provision of Section 13(1) defines a negotiable instrument. A promissory note is also a negotiable instrument but not in every case. The explanation to Section 13(i) makes it clear that a promissory note which is payable to order and which is expressed to be so payable or payable to a particular person but does not contain words prohibiting transfer nor betrays an intention that it is non-transferable is also a negotiable instrument.

7. The essential features of a promissory note 'and a bond' may now be considered. The essential features of a promissory note are (1) an unconditional undertaking to pay (2) the sum of money should be certain (3) the payment should be to certain person or to the bearer of the instrument; (4) it should be signed by the maker.

8. The essential features of a bond are (1) an undertaking to pay (2) the sum of money which need not necessarily be certain. (3) the payment will be to another person named (4) it should be signed by the maker (5) it should be attested by a witness and (6) it must not contain any writing making it payable to order or bearer.

9. In the case of Sam Singh v. Madan Das (AIR 1976 Madh Pra 144) (FB) their Lordships pointed out the three distinguishing features between a promissory note and those of a bond in the following words : (i) if money payable under the instrument is not cer-tain, it cannot be a promissory note, although, it can be a bond; (ii) if the instrument is not attested by a witness it cannot be a bond although it may be a promissory note and (iii) if the instrument is payable, to order or bearer, it cannot be a bond, but it can be a promissory note.

10. To put it differently, there are two peculiar features of a bond; (1) Positive--it must be attested by a witness. (2) Negative--it must not be payable to order or bearer. The Full Bench then observed (at p. 145):

'It is also clear that if in an instrument the above two distinguishing features (positive and negative) are present, then even if the four essentials of a promissory note are also present, the instrument will still be a bond, because all the ingredients of the promissory note are also present in a bond with the exception that whereas a promissory note can be payable, apart from the person named in it, to the order of that person or to the bearer of the instrument, a bond cannot be payable to order or bearer.' .

In other words, the observation of the Full Bench means that if the two above, peculiar features of the bond namely positive and negative, exist, it will be deemed to be a bond and not a promissory note.

11. In the present case the document contains an undertaking to pay on demand the sum of Rs. 5,000/- along with interest at 2 per cent per mensem to the person from whom the money has been borrowed and is attested by two witnesses. It does not contain any writing showing that it was payable to order or bearer. If the test laid down by the Full Bench is applied, the document in the present case would be a bond, and not a 'promissory note'.

12. A similar view was taken by a learned single Judge of the Bombay High Court in the case of J. S. Shah v. M. H. Gandhi (AIR 1973 Bom 27). 'But if a promissory note falling under Section 4 of the Negotiable Instruments Act, 1881, and, therefore, under Section 2(22) of the Indian Stamp Act. 1899, and would therefore, amount to bond' for the purposes of that Act.' The document before the Bombay High Court was both attested and did not contain any words of being payable to order or bearer.

13. In the appeal before me the recital in the instrument mentions the name of the person from whom the money was borrowed and also mentions that it shall be returned to him on demand (Indultalab). There can, therefore, be no manner of dobut that the person to whom the money was to be paid was certain and definite. Further, there is no indication in the document that it was, 'payable to order or bearer.' This condition fulfils the negative feature of a Bond. It was argued that the absence of these words do not detract the document from being a 'promissory note' and the presence of these words make it a negotiable instrument.

14. Another question arises as to what is the effect of the omission of the words 'payable to the order of or to the bearer of' in the document. If a document contains an unconditional undertaking to pay certain sum of money to a certain person on demand and does not contain the words 'payable to the order of or to the bearer of' it does not cease to be a promissory note. Section 4 of the Act makes it clear that where an instrument contains an unconditional undertaking signed by the maker to pay a certain sum of money only to a certain person; it would become a promissory note. The words 'to the order of' or 'to the bearer of the instrument' only makes it a negotiable instrument, but does not impinge on the document being a promissory note. Illustration (b) to Section 4 of the Act is as follows ;

'(b) I acknowledge myself to be indebted to B in Rs. 1,000/- to be paid on demand, for value received.'.

The illustration shows that there is no mention of the words 'payable to the order or to the bearer of the instrument'. It is clear that even if these words are not there the document does not cease to be a promissory note. A similar view has been taken in the case of Raghunath Bhandary v. Seetharama Punia (AIR 1972 Mys. 344).

15. But, in the present case, there is an additional feature and that feature is the attestation of the instrument. A 'promissory note' is not required to be attested. A bond is required to be attested. If the question was whether the attestation of an instrument takes it outside the purview of a promissory note, the answer would be in the negative.

If the document is with all intents and purposes a promissory note, the mere attesting of the instrument will not render it to be an instrument other than a promissory note. See Raghunath Bala-krishna Deshpande v. Bihari Lal Krishna Prasad Dave (AIR 1972 Mys 159). However, the question whether the instrument is a bond or a promissory note is to be decided on the basis of the document itself and the intendment of the parties. On a consideration of all the materials and relevant facts and circumstances I am of the opinion that the parties intended to execute a bond, for they not only shunned the words to make the instrument 'payable to order or to bearer' but had also got it attested. These features are indicative of the fact that the parties intended to execute a bond rather than a promissory note. It may also be noticed that there was deficiency in the stamp duty. The deficiency was made good subsequently on payment of penalty. The document was thereafter admissible in evidence but only as a bond. In my opinion, the view taken by the court below that it was a bond and not a promissory note must be upheld for the reasons indicated above.

16. Bond is not a negotiable instrument. Consequently, the provisions of Section 87 of the Act are not attracted. Any alteration made to a document not being a negotiable instrument is not affected by the provisions of Section 87 of the Act. It it has been held to be promissory note and as such a negotiable instrument subsequent alteration in the instrument would be affected by Section 87 of the Act, but such is not the position in this case. The instrument is a bond and consequently Section 87 of the Act has no application.

17. The second point urged by the learned counsel was that the promissory note not having been duly stamped it would not be admissible in evidence even on making good the deficiency on payment of penalty. This argument is available in a case of promissory note. A promissory note is required to be duly stamped at the time of its execution. Subsequent to the execution, the deficiency cannot be made good even on payment of penalty. But in the present case, the instrument has been held not to be a promissory note but a bond. Consequently, the provisions of Section 35 proviso (sic) of the Stamp Act would have no application to a bond. This contention, therefore has no force.

18. Coming down to the third question raised by the learned counsel for the appellant, it may be mentioned here that the court below has minutely sifted the evidence, appraised it and ultimately come to the conclusion that the money was advanced as loan to the appellant. This is a finding on a question of fact. Their Lordships of the Supreme Court have repeatedly held that a second appellate court has no. jurisdiction to interfere with the findings of fact howsoever grossly erroneous it may seem to be. Unless there be an error of law vitiating the finding, this Court has no jurisdiction to interfere with the finding on a question of fact. The question whether the money was advanced as a loan or not is a pure question of fact. Whether a particular witness is to be believed or not is in the jurisdiction of the final court on facts. What inference should be drawn from a particular piece of evidence is also a question of fact to be determined by such court. The second appellate court has no jurisdiction to re-appraise the evidence or find out what is the weight of the evidence on a particular point. These are the duties of final court on facts. I do not find any error of law nor the court below appears to be influenced by inconsequential matters to vitiate the finding on this question arrived at by the court below.

19. Great emphasis was laid by the learned counsel for the appellant that the 'promissory note' and the 'receipt' were executed on the 25th March, 1972 and it bore the refugee relief stamp which had been first issued on June 5, 1972. This showed that either the instrument was not executed on the 25th March, 1972 or the refugee relief stamp was affixed subsequently. The argument that it was affixed subsequently amounted to an alteration of the instrument treating it to be a negotiable instrument i. e, 'promissory note' is incorrect. The court below has recorded clearly that this refugee relief stamp was affixed subsequently with the consent of the appellant. This finding is based on an appraisal of the oral evidence. The question as to when the stamp was affixed is a question of fact. The finding on this question is a finding of fact. No error oflaw could be pointed out in this finding. This finding will have to be accepted for the purpose of this secondappeal.

Another point was raised that the refugee relief stamp had not been cancelled, as there was no thumb impression or cancellation mark on the refugee relief stamp. Therefore, it was not a duly executed receipt. I do not find any merit in this contention. It is established that the receipt was executed on that day and the refugee relief stamp was affixed subsequently with the consent of the appellant. If this stamp remained to be thumb-marked, it did not impinge on the factum of the execution of this receipt. The court below has considered this matter, and I see no reason to take a different view. The fact that the money had been advanced to the appellant having been established on the basis of oral evidence as well, the court below was justified in reversing the judgment of the trial court and decreeing the suit.

For the reasons indicated above, this appeal must fail and is accordingly dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //