Mehar Singh, C.J.
1. The plaintiff sued the defendants to recover Rs. 1.400/-as principal, with Rs. 300/- as interest, a total of Rs. 1,700/-, on the basis of what he himself described in his plaint as a promissory note of Poh Badi 4.2015 Bk., corresponding to December 30, 1958. The document is a separate piece of paper and bears the stamp of 20 Paise. If it is a promissory note, the stamp should have been of 25 Paise, and, if it is an acknowledgment, it should have been of 10 Paise.
2. The language of the document is --'Age rupya chuda sau (ank 1400/-) rokri liya jia ka biaj dar 12 ane sainkra dena mange tab dena.' The ending words 'mange tab dena' in English translation mean 'payment to be made when demanded'. An objection being raised on the side of the defendants as to the admissibility of this document in evidence on the ground that it being a promissory note does not bear proper stamp and hence is not admissible in evidence, it prevailed with the learned trial Judge on the ground that the document has in Et promise by the defendants to pay the amount stated in it on the demand of the plaintiff. So the learned trial Judge dismissed the claim of the plaintiff by his judgment and decree of March 27, 1963. In appeal, the learned District Judge was of the opinion that the words 'mange tab dena' in the document did not import any promise to pay and were merely a recital of liability of the defendants to pay. Hesought support for his view from Firm Ratanji Bhagwanji & Co. v. Prem Shanker, AIR 1938 All 619, in which this is what the learned Judge observed at page 620-
'The document of acknowledgment, dated 30th November 1932, is in these terms:
I have taken from you Rs. 1000 on 19th January. 1932, and Rs. 100 on 3rd February, 1932, total Rs. 1100. Whenever you ask for it I have to pay it together withinterest.
(The actual words are: jab mango tab biyaj sahit deneka hai). Below this is affixed a one anna stamp and on the stamp appears the signature of Jata Shanker on behalf of the firm. Although In its judgment the learned Munsif held that this document is a promissory note, the endorsement on the back of it in the handwriting of the learned Munsif himself is as follows:
'This is an acknowledgment and need not be impounded'. This endorsement is dated 14th December, 1935. the date on which the judgment in the case was pronounced. The endorsement was made in consequence of a report by the office that the document was a promissory note and should have borne a stamp of four annas, but as it bore a stamp of only one anna it was liable to be impounded. The lower appellate Court does not appear to have considered whether this document is a promissory note or a mere acknowledgment. In my opinion it is not a promissory note because it does not contain an unconditional undertaking to pay. It only acknowledges that the two items of money mentioned therein have been borrowed and that the executant has to repay them on demand. There is no promise to pay, but only an admission of liability to pay. I translate the words deneka hai as 'I have to pay or I am liable to pay' and not as 'I promise to pay'.'
So the learned Judge accepted the appeal of the plaintiff and remanded the case back to the trial Court for disposal of it in accordance with law after admitting the document in question in evidence. In second appeal by the defendants, the learned Single Judge has by his judgment and decree of October 7. 1964. reversed the order of the first appellate Court, restoring the decree of the trial Court, and thus dismissing the suit of the plaintiff, being of the opinion that the words as referred to above in the document mean promise to pay on demand. The learned Single Judge has considered not only Prem Shanker's case. AIR 1938 All 619 but also a few other cases to which reference will presently be made. This is a plaintiff's appeal under clause 10 of the Letters Patentfrom the judgment and decree of the learned Single Judge.
3. So the only question for consideration is whether the document in question is or is not a promissory note, or whether it is an acknowledgment? In Section 4 of the Negotiable Instruments Act, 1881 (Act 26 of 1881), the expression 'promissory note' is defined in this manner--'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''. Illustration (b) to this section says -- 'I acknowledge myself to be indebted to B in Rs. 1,000 to be paid on demand, for value received.' It is apparent that if the acknowledgment of indebtedness is in a defined sum of money payable on demand that is enough and the document need not necessarily say that the debtor promises to repay the amount. Here the document is an instrument in writing, it contains an unconditional undertaking to pay because the payment is to be made under it by the defendants to the plaintiff on demand, which may have proceeded immediately the next moment this document came into existence, it is signed by the maker, and it says clearly that a certain defined sum was to be paid to the plaintiff by the defendants under this instrument. It fulfils all the requirements of Section 4 of Act 26 of 1881, and squarely comes within the scope of Illustration (b) to that section.
4. The learned counsel for the plaintiff contends that the undertaking to repay the amount in this case by the defendants was not an unconditional undertaking but was a conditional undertaking because the document says that they are to make the payment when demanded. He seeks support from Muthu Gounder v. Perumayammal. AIR 1961 Mad 347. but in that case the document provided payment after two years, and. on facts, the case is not quite parallel. However, it is on this observation of the learned Judge in that case upon which the learned counsel places reliance -- 'Now, in the present case, the unconditional promise to pay. which would otherwise exist if the promisor had merely agreed to pay on demand, is qualified and made into a conditional one by making it payable after a period of two years; or conversely the unconditional promise which would exist even if the money is made payable at the end of two years is made conditional by the stipulation for a demand thereafter.' It will be seen that this observation of the learned Judge deals with the condition of two years before the expiry of which the payment was not to be made, and the learned Judge merely points outthat even after that it had to be made by a demand. On facts, therefore, the learned Judge did not find that the document there was unconditional undertaking to pay a certain sum of money. So this case does not advance the argument on the side of the plaintiff.
The learned counsel then falls back on Prem Shanker's case, AIR 1938 All 619, which undoubtedly supports the argument on his side. That case was, however, considered by a Division Bench, consisting of Shah, C. J. and Baxi, J., of the Saurashtra High Court in Shah Chimanlal Jagjivandas v. Khambhla Savji Bechar, AIR 1955 Sau 74, and the learned Judges did not accept the ratio of that case observing -- 'In that case the document was practically in identical terms with the present document and the material words were 'jab mango tab biyaj sahit deneka hai'. The words 'deneka bai' were translated by the learned Judge as 'I have to pay' or 'I am liable to pay' and not as 'I promise to pay', and he declined to treat it as a promissory note on the ground that there was no promise to pay but only an admission of liability to pay. But illustration 2 to Section 4(a), Negotiable Instruments Act, 1881, which defines a promissory note, shows that an acknowledgment of indebtedness for a certain sum of money coupled with the words 'to be paid on demand' is a promissory note and in Mohammad Akbar Khan's case, AIR 1936 PC 171. their Lordships recognized that the illustration showed that the words 'I promise' or 'I undertake' are unnecessary With great deference to the learned Judge of the Allahabad High Court, therefore, the absence of the words 'I promise to pay' makes no difference in the tenor of the instrument, and an acknowledgment of liability to pay a specific sum of money on demand is sufficient for holding the document to be a promissory note provided it fulfils other conditions of a promissory note', and earlier the learned Judges after referring to some cases including two cases decided by the Privv Council AIR 1936 PC 171. and Karam Chand v. Firm Mian Mir Abroad. AIR 1938 PC 121 observed that 'These authorities clearly establish that before a document can be treated as a promissory note it should be promissory note both in form and in intent' I respectfully agree with the learned Judges in this last mentioned case. In the present case the document answers to the form of a promissory note as in Section 4 and illustration (b) to it in Act 26 of 1881. It is a document by itself and is as such negotiable within the meaning and scope of Section 13 of the same Act, and so the observations of the learned Judge in Ambalal Purusottamdas and Co. v. Jawaharlal Purusottam Dave, AIR 1953 Cal 758, have noreal bearing on the facts of the present case because in that case the entry was in the account-book of the party.
5. It has already been shown that the form of the document in this case conforms to the requirements of Section 4 and of illustration (b) to it of Act 26 of 1881. On the question of intention of the parties. however. curiously enough neither the trial Court nor the Court of first appeal has said one single word, and even in the judgment of the learned Single Judge there is nothing on this. Intention is always a question of fact and as it is the right of the Court of first appeal to be the final Court of fact, whose decision in such matters is not open to question in second appeal in view of Section 100 of the Code of Civil Procedure, ordinarily such a question would be left to such a Court for disposal.
In the circumstances of the present case, however, no Court has attended to this aspect and it is not consistent with the justice of the case so Ear as the facts and circumstances of the present case are concerned to remit the matter now to the Court of first appeal merely for giving decision on the intention of the parties whether or not they intended the document in question to be a promissory note. The reason is that in the plaint itself the plaintiff has described this document as a promissory note and made a claim against the defendants on the basis of it as a promissory note. The learned counsel for the plaintiff urges that a wrong description of this type by a plaintiff is not conclusive as against him. but then when the plaintiff appeared in the witness-box, he never took this stand that he had wrongly or by mistake described this document as a promissory note in his plaint. It is apparent and obvious evidence of the intention of the parties that they intended this document to be a promissory note and not only did the plaintiff so intend but he also came to base his claim on it clearly saying that it is a promissory note and he is basing his claim on that promissory note. It is in these circumstances that it will not be in the interest of justice to remit this case back to the Court of first appeal [or decision of this question of fact in regard to the intention of the parties with regard to this document. In the facts of the present case it must be held that the parties intended the document in question to be a promissory note.
6. On the approach as above, this appeal of the plaintiff is dismissed with costs affirming the judgment and decree of the learned Single Judge.
Bal Raj Tuli, J.
7. I agree