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Ghasi Patra Vs. Brahma Thati - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 311 of 1960
Judge
Reported inAIR1962Ori35
ActsCode of Civil Procedure (CPC) , 1908 - Sections 102; Stamp Act, 1899 - Sections 35 and 36; Negotiable Instruments Act, 1881 - Sections 80
AppellantGhasi Patra
RespondentBrahma Thati
Appellant AdvocateB.K. Pal, Adv.
Respondent AdvocateM.N. Das, Adv.
DispositionPetition dismissed
Cases ReferredBishunChand v. Audh Bihari Lal
Excerpt:
.....of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the..........and took a sum of rs. 500/.-. the case of the defendant-petitioner was that he did not execute any pronote, nor took any money from the plaintiff; that one dolamani patra had brought a tenancy case against the defendant and the plaintiff's father jointly challenging certain transfer made by the defendant in favour of the plaintiff's father; that the said dolamani got a decree in that revenue case, and thereupon :the plaintiff's father and the plaintiff induced the defendant to file an appeal against that decree; that the defendant expressing his unwillingness because of shortage of funds, the plaintiff induced him to sign a document, so that they (the plaintiff and his father) would contest the revenue case in the appellate court, and the defendant would have to pay no expenses on that.....
Judgment:
ORDER

J.K. Misra, J.

1. The opposite party, as plaintiff, filed a suit for recovery of Rs. 500/- as principal & Rs. 120/- as interest. His case was that the defendant executed a promissory note Ext. 1 in his favour and took a sum of Rs. 500/.-. The case of the defendant-petitioner was that he did not execute any pronote, nor took any money from the plaintiff; that one Dolamani Patra had brought a tenancy case against the defendant and the plaintiff's father jointly challenging certain transfer made by the defendant in favour of the plaintiff's father; that the said Dolamani got a decree in that revenue case, and thereupon :the plaintiff's father and the plaintiff induced the defendant to file an appeal against that decree; that the defendant expressing his unwillingness because of shortage of funds, the plaintiff induced him to sign a document, so that they (the plaintiff and his father) would contest the revenue case in the Appellate court, and the defendant would have to pay no expenses on that account; that on that basis be signed the suit document without knowing that it was a promissory note.

The trial Court, holding that the evidence onthe plaintiffs side about the execution of the suit pronote and passing of consideration was discrepant and the refusal of the plaintiff to take special oath was without sufficient justification, dismissed the plaintiff's suit. The first court of appeal, holding that the defendant had admitted the execution of the suit pronote in his written statement and the discrepancy in the evidence on the plaintiffs side was too trifle to be taken notice of and that there was mo proper offer of special oath according tothe terms of the Oaths Act, held that the defendant had executed the same and had incurred the loan thereunder. Though the appellate Court held that there was no provision for interest in the pro-note and no evidence of demand made by the plaintiff, it allowed interest at 6 per cent per annum under Section 80 of the Negotiable Instruments Act, from the date of execution of the pro-note. Initially the petitioner filed a Second Appeal against the said decree of the appellate Court; but since Section 102 C. P. C. had been meanwhile amended allowing no Second Appeal up to Rs. 1000/-, at the petitioner's instance the Second Appeal was converted to a revision petition.

2. The following points were taken, up on be-half of the petitioner; (1) that since the suit pronote had not been properly stamped, it was hit by Section 35 of the Indian Stamp Act, and no decree should have been passed thereon; (2) that there was no admission by the defendant about the execution of the suit pronote, and since the first court of appeal has relied on the defendant's statement as an admission, its finding about the execution of the suit pronote could not be sustained; (3) that since there was no provision for interest in the suit pronote and since there was no demand, interest should not have been allowed for any period prior to the institution of the suit. Another point that was also placed on behalf of the petitioner was that the petitioner was entitled to place his case on the footing of a Second Appeal, and he was not hit by the amendment of Section 102 C. P. C., which came in long after the institution of the suit, though prior to the institution of the Second Appeal,

3. Coming to the last point first, I would say that the matter is concluded by a decision of a Division Bench of this Court, reported in Kamal Nayan v. Bira Naik, ILR 1950 Cut 663: (AIR 1951 Orissa 141). It has been held therein,

'The right to appeal is a vested right which vests in the litigant at the time the suit is instituted. By subsequent alteration of law, either relating to the forum or to the other limitations to the right of appeal, it cannot be taken away, unless the law purporting to take it away is, either expressly or by necessary intendment, given a retrospective operation'.

Their Lordships, in course of the said decision, relied upon the following observation of Sir Rankin, C. J. In Sadar Ali v. Doliuddin Ostagar, ILR 56 Cal 512: (AIR 1928 Cal 640) (FB).

'The legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings connected by an intrinsic unity..... The date of presentation of second appeal to the High Court is not the date which determines the applicability of the amended clause of the Letters Patent and as the matter now stands, the date of institution of the suit in each case is the determining factor'.

In the present Case, there is nothing in the amended Section 102 C. P. C. to indicate that the amendment was retrospective in character, and so I would accept the petitioner's contention that he could place his points on the basis as if it is a Second Appeal.

4. Now coming to the first contention of the petitioner, it is evident that the suit pronote hasnot been sufficiently stamped. In tile written statement, the defendant put his objection in this respect, rather vaguely, when stating that the pronote was legally invalid and the suit was not maintainable for not having been properly stamped. This statement did not make a categorical case that the suit pronote had not been properly stamped. In any case, no specific issue way raised on that score, and there was a general issue in the form 'Is the suit maintainable?' The decision of this issue, as observed by the trial court, was abandoned at the defendant's instance. The record of the case further shows that the pronote in question was admitted without any objection from the defendant's side.

That being the position, the question is whether the defendant could raise the question now, in view of the provisions of Section 36 of the Stamp Act, which lays down that where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. For the petitioner reliance was sought to be placed on a decision of the Nagpur Judicial Commissioner's Court reported in Sitaram v. Thakur-das, 50 Ind Cas 781: (AIR 1919 Nag 141) where it has been observed,

'The expression 'admitted in evidence' in Section 36 of the Stamp Act means the act of letting the document in as part of the evidence as a result of judicial determination of the question whether it can be admitted in evidence or not. In other words, the court admitting it must have applied its mind consciously to the question whether the document was admissible or not'.

Section 36 of the Stamp Act, in its terms, does not make any provision that for its application a judicial determination of the admissibility of the document is necessary; all that it says that once the document has been admitted, in evidence, the question about the sufficiency or otherwise of the stamp cannot be raised in a subsequent stage of the same proceeding. It has been held in Krishna Chandra v. Rajendra Narayan, 17 Pat LT 760: (AIR 1936 Pat 465).

'When an instrument has once been admitted, in evidence, it cannot be called in question at any stage of the same suit in view of the provisions of Section 36. It matters nothing under Section 36 whether the instrument was wrongly admitted or rightly admitted, or admitted without objection or after hearing or without hearing such objections. From the time of admission of the document it is not open to objection on the ground of not having been duly stamped'.

It has been held in M.K. Lodhi v. Zia-Ual Haq, ILR (1939) All 846: (AIR 1939 All 588),

'The provisions of Section 36 are mandatory and preclude the admission of a document once admitted in evidence from being called in question at any stage of the suit. There is nothing in the section to warrant the conclusion that the section has application only to cases in which the court has admitted the document after consciously applying its mind to the question of admissibility. When a court admits a document in evidence it docs or at least it is deemed to act judicially and this judicial act of admitting the document in evidence can at no subsequent stage of the suit be set all naught on the ground that the document was not duly stamped'.

Similarly it has been held in Venkateswara Iyer v. Ramanatha Deekshitar, AIR 1929 Mad 622,

'Where the plaintiff sued on a promissory note and the defendant raised the plea that it was not admissible in evidence on the ground that it was not validly stamped, but no issue was framed on its admissibility and the Court of the first instance marked it as an exhibit unconditionally, the appellate court has no jurisdiction to agitate the question of its admissibility.'

With due respect, agreeing with the observations of the Patna, Allahabad and Madras High Courts referred to above, and differing from the view ; taken by the Nagpur Judicial Commissioner's Court, I hold that the petitioner is not entitled to raise the question of insufficiency of stamp of the suit pronote at the present stage.

5. Coming to the second point, it was not the defendant's case that he put his signature on a blank paper. On the other hand, his case in evidence was that a document was prepared in his presence which he signed, and he did not know what that document was, nor was he given to understand that it was a pronote, and all that he was given to understand at the time was that he was executing that document so that the plaintiff and his father would carry on the revenue appeal, and he would not have to pay any money on that account. No doubt, this did not make out a clear admission on the defendant's side that he had executed Ext. 1, when he had pleaded that he signed it without knowing its contents, and no decree could be based on the said statement alone. But the defendant, in the position so taken by him, admitted certain circumstances, which, without being properly explained, made a relevant link of evidence against him.

Though the defendant might have been illiterate, it was normally for him to enquire as to what was the document that was being written in his presence, and which he was asked to siga after the writing was complete. No doubt the first court of appeal viewed the statement of the defendant as an admission when he took the same into consideration with the other evidence in the case. As already said, though not an admission, as a piece of conduct of the defendant, his signing the pronote Ext. 1 after it being written without enquiring what that document was, was a piece of relevant evidence, and as such the decision of the appellate Court taking it into consideration along with the other evidence regarding execution of the pronote coming from the plaintiff, the scribe and one of the attesting witnesses, appears to have been based on the legitimate consideration of the evidence, and as such calls for no interference.

6. The next point raised by the petitioner is about interest. According to the petitioner's contention, interest under Section 80 of the Negotiable Instruments Act could have been allowed only from the date of the demand, and not for any earlier period, and since no demand was proved in the case, no interest should have been allowed fromthe date of the execution till the date of the suit. Section 80 of the Negotiable Instruments Act provides that when no rate of interest is specified in the instrument, interest on the amount due thereon shall, notwithstanding any agreement relating to interest between any parties to the instrument, be calculated at the rate of six per cent per annum from the date at which the same ought to have been paid by the party charged until tender or realisation of the amount due thereon, or until such date after the institution of a suit to recover such amount as the Court directs.

In support of his contention, the petitioner relies on Best v. Haji Muhammad Sait, ILR 23 Mad 18 and Premlal v. Radhaballaw, AIR 1931 Cal 140. According to the said decision, the word 'same' in Section 80 means' interest, and not the amount due on the instrument. They have further taken a view that when the amount is payable on demand, there must be an actual demand before the amount under the instrument can be said to be due. On the other side, reliance has been placed on Ganpat Tukaram v. Sopana Tukaram, AIR 1928 Bom 35 (FB) where it has been held,

'Where a promissory note is payable on demand (but not at a specified place) and is silent as to interest, interest can be awarded under Section 80 at 6 per cent per annum from the date of the promissory note',

In this decision, the expression 'the same' in Section 80 has been taken to mean as the amount due on the instrument, and not interest on that amount. In a promissory note where there is no express provision at all for payment of interest, the expression 'the Same' in Section 80 could not apparently mean interest which ought to have been paid but it would normally refer to the principal which is due under such note. According to Section 22 of the Negotiable Instruments Act, the maturity of a promissory note is the date at which it falls due, and it provides for a period of grace, except in case of a promissory note payable on demand. Section 32 of the said Act provides,

'In the absence of a contract to the contrary, the maker of a promissory note ........... arebound to pay the amount thereof at maturity ac-cording to the apparent tenor of the note ... andin default of such payment as aforesaid, such maker ......... is bound to compensate any partyto the note or bill for any loss or damage ... '

Thus, Sections 22 and 32 read together make a clear case that the amount under a promissory note payable on demand falls due on the very date when the promissory note is executed. The Negotiable Instruments Act contains no definition of the words 'on demand'. Under Article 73 of the Indian Limitation Act, in case of a promissory note payable on demand, time runs from the date of the note. So too, under Article 59, when money is lent under an agreement that it is payable on demand, time runs from the date when the loan is made. It is in view of these considerations that the Full Bench of the Bombay High Court was of the view that in case of a promissory note payable on demand, interest is chargeable from the date of the execution, with Which I respectfully agree. The Patna High Court In a Division Bench decision, reported in BishunChand v. Audh Bihari Lal, 2 Pat LJ 451: (AIR 1917 Pat 533) has held,

'A handnote payable on demand but which does not provide for the payment of interest carries interest at the rate of 6 per cent per annum from the date of execution of the handnote until the realisation of the debt. Ordinarily, this Court follows the decision of the Patna High Court in the absence of any decision of its own. To the circumstances, I reject the petitioner's contention that grant of interest from the date of execution of the pronote was against the provision of Section 80 of the Negotiable Instruments Act.

7. In the result, there is no merit in the present petition which is accordingly dismissed with costs.

8. Hearing fee Rs. 50/- (Fifty rupees).


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