1. This reference arises out of a revision petition filed by the plaintiff Choudhary Gulabchand Jain. He filed a suit against the defendant Bhama for the recovery of a sum of Rs. 8,187/- on the basis of an entry signed by the defendant in the account books of the plaintiff. The entry reads as follows:--
8187 fglkc dj ckdh ysuk jgk eh vlkM++onh 3 la- 2O2O rk- 10&6&63 :i;k ,D;klh lkS lkklh 8187 :i;k ckdh ysukA n% ekekuk;d
The trial Court held that it was a bond within the meaning of the Stamp Act and directed the plaintiff to pay the duty and penalty which is to be charged for the bond. Aggrieved by this order the plaintiff filed the revision petition. Shivdayal. J., before whom the revision came up for hearing, referred the question whether the entry in the account books was a bond within the meaning of Section 2(5) of the Stamp Act (hereinafter referred to as the Act) in the following terms:--
'Although it can be said with regard to the expression 'Baqi Dena' that it amounts to a bond on the authority of Bhansarlal v. Naval Kishore, (AIR 1958 Madh Pra 21) and also Hiralal v. Badkulal. AIR 1953 SC 225, in my opinion, the question whether the words 'Baqi Lena' also mean an obligation to pay the money within the meaning of Section 2(5) of the Stamp Act must be decided by a Division Bench.'
2-3. The main contention of the learned counsel for the plaintiff is that the entry amounts to an acknowledgment and not a bond within the meaning of Section 2(5) of the Act. In order to appreciate this contention it is necessary to refer to the definition of 'Bond' as given in Section 2(5) of the Act, which reads as follows:--
' '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 specified act is performed, or is not performed, as the case may be;
(b) any instrument attested by a witness and not payable to order or bearer, 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.'
The relevant clause of the aforesaid provision is clause (b) and as the other conditions laid down therein are fulfilled in this case, the main question is whether by this instrument the defendant obliged himself to pay money to the plaintiff, or merely acknowledged an existing liability.
4. It may be here mentioned that the word 'acknowledgment' has not been, defined in the Act, but it would be pertinent to refer to Article 1 of the Act which gives its description as under:--
'Acknowledgment of a debt exceeding twenty rupees in amount or value written or signed by or on behalf of, a debtor in order to supply evidence of such debt in any book (other than a banker's pass-book) or on a separate piece of paper when such book or paper is left in the creditor's possession; provided that such an acknowledgment does not contain any promise to pay the debt or any stipulation to pay interest or to deliver any goods or other property.'
From the proviso in the aforesaid des-cription it is clear that where an acknowledgment contains a promise to pay the debt it is not to be stamped as an acknowledgment under the Act Thus, on reading the aforesaid description in Article 1 with Sub-section (5) of Section 2 of the Act it would appear that where an acknowledgment contains a promise to pay it is not to be stamped as an acknowledgment, but will have to be stamped as a bond, where it is attested by a witness and is not parable to order or bearer.
5. There can be no difficulty in considering whether a particular instrument is a bond or a bare acknowledgment for the purposes of the Stamp Act where such instrument contains an express promise to pay. The difficulty can arise only where the promise to pay is implied. It has been held in a number of cases that the definition of 'Bond' as given in Sub-section (5) of Section 2 of the Act covers only such instruments whereby a person expressly obliges himself to pay money and not one from which the law merely implies such an obligation. In Chhagan-lal v. Emperor. 31 Nag LR 108 = (AIR 1934 Nag 261) it was held that the mere signing of the balance in account books does not necessarily make such an instrument a bond even though an obligation to pay is implied. Similarly, in Sobhagmal Keshrimal v. Ramnivas Murlidhar, 1961 MPLJ 293, Newaskar. J., made the following observations in paragraph 2:--
'There is nothing in the operative part of the document to suggest that the writer had made an express promise to pay the amount although an implied promise to pay can be inferred by reference to the date of maturity mentioned. That would not amount to even an agreement much less a bond.'
6. In Bhawanilal V. Madanlal. 1963 Jab LJ 743 the words ^^ckdh nsuk :tw**were construed as express promise topay. In this decision reliance was placed on an earlier decision of this Courtin Bhansarlal v. Nawal Kishore, 1957Jab LJ 964 - AIR 1958 Madh Pra 21referred to by Shivdayal, J., in hisorder of reference. Shivdayal, J. hasrightly pointed out that the actualwords - in the entry In that case are^^ckdh nsuk** and not ^^ckdh ysuk** as reported in M. P. C. and also in JLJ., Thus, the decision of the Division Bench of this Court in 1957 Jab LJ 964 = (AIR 1958 Madh Pra 21) (Supra) merely lays down that where the entry contains the words ^^ckdh nsuk** it contains an express promise to pay the debt. From the aforesaid decisions it would be clear that where an instrument contains an express promise to pay, the instrument may amount to a bond within the meaning of Sub-section (5) of Section 2 of the Act if the other conditions laid down in the said subsection are fulfilled.
7. No decision has been brought to our notice in which an instrument containing an implied promise to Pay may have been adjudged to be a bond within the meaning of Section 2(5) of the Act. In AIR 1953 SC 225 their Lordships relied on the decision of the Privy Council in Maniram v. Rupchand, (1906) 33 Ind App 165 (PC) wherein it was held that an unconditional acknowledgment implies a promise to pay, because that is the natural inference, if nothing is said to the contrary. Their Lordships, however, had no occasion to consider whether an implied promise to pay would brine the instrument within the purview of Section 2(5) of the Act and make it chargeable as a bond if it was attested and not payable to bearer or order. An acknowledgment may imply a promise to pay as held by their Lordships, but in our view unless the instrument contains an express promise to pay it would not fall within the purview of Section 2(5) of the Stamp Act,
8. We may here refer to the Full Bench decision of the Lahore High Court in Firm Shiv Ram Punnun Ram v. Faiz, AIR 1942 Lah 50 (FB) on which the learned counsel for the plaintiff strongly relied. In that case the earlier decision of the Lahore High Court in Firm Dulichand v. Panthi, AIR 1938 Lah 511 was overruled, and it was held that what is taxed is not the transaction, but the document, and, therefore, whatever implied promise there may be involved in an unconditional acknowledgment. It can never be a bond unless the obligation is contained in the document itself in express terms.
9. Thus, there is ample authority for the view that unless promise to pay is clearly expressed in the instrument it cannot fall within the definition of the 'Bond' given in Section 2(5) of the Act and this in our opinion is the correct view.
10. The next question for consideration is whether the entry in question contains an implied promise to pay or an express promise to pay. An entry in an account book containing the words ^^ckdh nsuk** has been consistently interpreted by this Court as containing an express promise to pay. The question now posed for consideration is whether an entry containing the words ^^ckdh ysuk** also amounts to an express promise to pay or not. Before proceeding to deal with this question we may point out that whether a particular entry contains an express promise to pay pr not can properly be decided by considering the entry as a whole and not merely by referring to a particular portion thereof.
11. A reference to the entry inquestion would show that it has beenmade by the creditor stating that afteraccounts, certain amount was founddue. In our view, where a creditorstates that a certain amount is due tohim and the debtor merely signs theentry it is nothing more than an acknowledgment by him of the amountfound due. There may be an impliedpromise to pay, but the entry cannotbe construed as containing an expresspromise to pay. The Full Bench of theLahore High Court in Shiv Ram's case(Supra) held that the expressions^ckdh nsus] ckdh ysuk vkSj ckdh jgs** meant thesame thing and they amount to mereacknowledgment It may here bementioned that in the case before theirLordships they were required to consider an instrument containing an entryckdh jgk ysus** and, therefore, the observations with regard to the entry^^ckdh nsus** were in the nature of obiter dictum. With great respect, so faras the expression ^^ckdh nsus** is concerned, it has already been held by thisCourt to amount to express promise topay and we see no reason to take a different view, because the word ^^nsuk** clearly means to pay and, therefore, andentry containing the words ^^ckdh nsuk** does contain an express promise to pay. But the position would be different where an entry contains the words ^^ckdh jgs** or ^^ckdh ysuk**. Such an entry, if signed by the debtor merely amounts to an acknowledgment of his liability. It may imply a promise to pay on which a suit may lie, as held by their Lordships of the Supreme Court in AIR 1953 SC 225 (Supra). But it does not amount to a bond within the meaning of Section 2(5) of the Act.
12. We are, therefore, of the opinion that an entry in the creditor's account book containing the words ^^ckdh ysuk** signed by the debtor is not a bond within the meaning of Section 2(5) of the Stamp Act, even though it is attested and we answer the reference accordingly.