1. This application arises from a suit in which the Judge of the Small Cause Court of Ghazipur dismissed the plaintiff's claim. The defendant is said to have borrowed Rupees 300 from the plaintiff's father in 1926 and executed a 'sarkhat,' but he is said to have paid this amount on 21st July 1929, and on the following day he borrowed a further sum of Rs. 250 adding a note of memorandum on the old document. This note or memorandum formed the basis of the plaintiff's suit, but it was not stamped,, and the Court held that it required a stamp of one anna and was not 1933 admissible in evidence as 'it was an acknowledgment.' The decision of the learned Judge has been assailed from two points of view. It is said in the first place that the document is either a receipt, in which case it might have been admitted in evidence on payment of a penalty, or else a mere memorandum on which no stamp was necessary. The document in question reads as follows:
Dastkhat Ramtapesa Singh: do sou pachas rupiya nagad liya sahi iske alawa hamare zimme aur kuchh baqi nahi hota hai.
which may be translated literally:
Signed by Ramtapesa Singh : Rs. 250 cash have been taken. Besides this nothing else is due from me.
2. I have been referred to the decision in the cases of Bishambar Nath v. Nand Kishore (1892) 15 All 56 Udit Upadhya v. Bhawani Din (1904) 27 All 84 and Dulmha Kunwar v. Mahadeo Prasad (1906) 28 All 436 in which somewhat similar documents have been held to be admissible in evidence without stamps. It is also clear however from these cases that every such document has to be considered on its own merits. Mr. Pandey who has opposed the application has laid stress on the distinction between the receipt as defined in Section 2(23), Stamp Act, and an acknowledgment in Article 1, Schedule 1 of the same Act. A receipt is given for money received (the words used in the Act are 'acknowledged to have been received') and in Clause (b) of Section 35 there is a provision to the effect that where such a receipt is not stamped it may be admitted in evidence against the person who was required to give a stamped receipt; broadly speaking it may be said that it may be admitted in evidence in favour of the debtor against the creditor. An 'acknowledgment' on the other hand, is defined in the article referred to as a document written or signed by or on behalf of a debtor in order to supply evidence of such debt, and it is left in the creditor's possession. It does not however contain a promise to pay the debt or any stipulation to pay interest or to deliver any goods or other property. In the case of Ram Das v. Inayat Ullah AIR 1923 All 297 a document somewhat similar to the one in suit was held to be an 'acknowledgment' as defined in Article 1, Schedule 1, Stamp Act, and this is the case on which the trial Court has relied. There is no saving clause in the Act to enable an acknowledgment which, requires a stamp and which is not stamped to be admitted in evidence; on behalf of the creditor.
3. I am not concerned now with the question of whether the document in this suit contains a promise to pay the debt. In that case it would be much more than, an acknowledgment. It would be a definite contract on the part of the defendant, and would probably be defined as a promissory note, and would certainly not be admissible in evidence; as it is not stamped. What is claimed; on behalf of the applicant is that it is something less than an acknowledgment as defined above, that it is either a receipt or one of those miscellaneous-memoranda which have been referred, to in the decisions which I have quoted.. In all these cases and in the case relied on by the Court the ratio decidendi has, if I am not mistaken, been, the question of whether the document was executed in order to supply evidence of the debt. In the first case-quoted, that of Bishambar Nath v.. Nand Kishore (1892) 15 All 56 the Court was considering whether there had been such an acknowledgment as is referred to in Section 19, Limitation Act, and it was held, that as the document was an ordinary letter which was not written with the express intention of supplying evidence it did not require to be stamped under the provisions of Article 1, Stamp Act..
4. The case therefore is authority for holding that there may be 'acknowledgments' recognised as such by the-. Courts which do not require stamping, and which therefore are not 'acknowledgments' as defined in Schedule 1, Stamp-Act. The other features of the document in that case however have little or nothing in common with the one before me. In the case of Udit Upadhya v. Bhawani Din (1904) 27 All 84 the Court had to decide whether the document contained a promise to pay, and it was stamped. Moreover, although the learned Judges were doubtful as to whether it was an. acknowledgment that required to be: stamped they did not record a decision on that point so that the case, does not help the applicant. The case of Dulmha Kunwar v. Mahadeo Prasad (1906) 28 All 436 dealt with documents which were not signed by either of the parties and were held to be merely memoranda. The case of Ram Das v. Inayat Unnah AIR 1923 All 297 on which the opposite party relies dealt with a document which contained a statement that a definite sum was due to the plaintiff from the defendant. In the present case the document is not so precise as that. The trial Court has however drawn from the words 'Rs. 250. have been taken: besides this nothing is due from me' the inference that there was an implied acknowledgment on the part of the defendant that the sum then taken, viz: Rs. 250 did remain due from the defendant. I think that this inference was perfectly justifiable, and I think moreover that the circumstances that the words were written on an old formal document and signed by the debtor and left in the possession of the creditor justify the further inference that the document was intended to supply evidence of the debt.
5. It has however been suggested that the plaintiff's case was not entirely based on this document, and that the plaintiff ought to have been given an opportunity of proving the transaction in which the money was advanced to the defendant by other evidence. Of course, the document itself being held to be an acknowledgment and being unstamped could not be used as evidence, but the plaintiff might have been allowed to produce oral evidence. The fact is however that the case as presented on behalf of the plaintiff in the trial Court was based entirely on this document. The plaint itself refers to the document as a 'sarkhat' and although it describes the circumstances in which the money was advanced, and although it might be argued from the plaint itself that the Court would have been justified in allowing the plaintiff to fall back on other evidence than that of the document to prove the transaction, yet it is clear that the Court was never approached with any application to amend the plaint or to admit oral evidence. In fact it has been admitted in argument in this Court that this was so, and according to the judgment:
The learned vakil for the plaintiffs has argued that the document in question is a receipt and the suit on the basis of the unstamped receipt is maintainable.
6. If the learned vakil really meant that he should be allowed to produce evidence of the transaction and to use what is called the receipt as part of that evidence he certainly did not make himself clear to the Court, and it appears to me that there is no justification for presuming that that is what he meant and that the Court misiunderstood him, but that there is every justification for holding that he wished still to base the case on the document if the Court were to hold if to be admissible in evidence as a receipt. There is, it is true, some force in the argument that the plaintiff might have been allowed to produce evidence aliened on the ground that the document was not the consideration for the loan and was merely--as it indeed has been held to be--evidence of the debt. I do not think however that it would be proper for me to set aside the finding and remand the case to enable the plaintiff to produce evidence of the transaction merely because this plea-has been set up at this stage. Under Section 25, Provincial Small Cause Courts Act, this Court has only to be satisfied that a decree or order in a case decided by a Court of Small Causes is according to law, and as the case as presented to the Court was one based on this document and as the document has been rightly held to be an acknowledgment as defined in Article 1, Stamp Act, it is impossible to hold that the case has been decided otherwise than in accordance with law. The result is that the application fails and is dismissed with costs.