D.M. Bhandari, J.
1. This is a revision application on behalf of Raghunath Prasad defendant against the order of the Senior Civil Judge, Jaipur City, dated 9-1-1957 holding that the document dated 2-4-1953 executed by the defendant in favour of the plaintiff Mangilal was not a promissory note but was an agreement and could be admitted in evidence after the payment of penalty. The defendant made an application to the trial court that he wanted to file a revision application in this Court and that the document may not be admitted in evidence and it has not yet been admitted in evidence.
2. I am very doubtful whether a revision application against the order determining the nature of the document for the purpose of the Stamp Act can be filed under Section 115 of the Civil Procedure Code. There is no question of jurisdiction involved in this case as the learned Senior Civil Judge had jurisdiction to decide the nature of the document for the purpose of the Stamp Act. As to the application of Sub-section (c) of Section 115, there are series of decisions of their Lordships of the Privy Council which all lay down the law that if a court has jurisdiction to decide a case and even if it decided wrongly, it cannot be said that it has exercised jurisdiction illegally or with material ir-regulariy.
Reference in this connection may be made to the cases of Amir Hassan Khan v. Sheo Baksh Singh, 11 Ind App 237 (PC), Balkrishna Udayar v. Vasudeva Aiyar, 44 Ind App 261: (AIR 1917 PC 71), Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras, 76 Ind App 67; (AIR 1949 PC 156) and Joy Chand Lal v. Kamalakslia Chaudhury, 76 Ind App 131: (AIR 1949 PC 239). In Joy Chand's case, 76 Ind App 131: (AIR 1949 PC 239) it was pointed out that an error in decision of the subordinate court does not by itself involve that the subordinate court had acted illegally Or with material irregularity so as to justify interference in revision under Sub-section (c) of Section US but if as a result of such error in the decision the subordinate court exercised a jurisdiction not vested in it by law or failed to exercise jurisdiction so vesed a case for revision under Sub-section (a) or sub-section(b) may arise. Their Lordships of the Supreme Court also considered Section 115 C. P. C. in the case of Keshardeo v. Radha Kissen. 1953 SCR 136: (AIR 1953 SC 23) and after citing the Privy Council cases, referred to the case of Nagpur High Court in the case of Narayan Sonaji v. Sheshrao Vithoba, ILR (1948) Nag 16: (AIR 1948 Nag 258) (FB), wherein it was said that the words 'illegally' and 'material irregularity' do not cover either errors of fact or law. Their Lordships further observed asfollow:
'They do not refer to the decision arrived at but to the manner in which it is reached. The errors contemplated relate to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribes have been complied with.'
3. The above authorities in my humble opinion clearly lay down the limits under which Section 115 C. P. C. can be applied. As pointed out in Balakrishna Udayar's rase, 44 Ind App 261: (AIR 1917 PC 71) this section is not directed against the conclusions of law or fact in which the question of jurisdiction is not involved. But there is an authority of this Court in the case of Brijraj Sharan v. Sahu Raghunandan, ILR (1955) 5 Raf 367: ((S) AIR 1955 Raj 85) in which such a revision application was entertained and accepted. I do not think it is open to me sitting as a single Judge to take a contrary view. I also do not think that I should refer the matter to a larger bench as in my view the revision application fails on merits.
4. I, therefore, proceed to decide the revision application on merits.
5. Translated into English the relevant portion of the document runs thus:
'Account one of Raghunath Prasad J. Silawat of Jaipur.
Rs. 30167/4/6 carried forward as balance due under the old Account. Miti First Baisakh Badi 2nd, Smt. 2010. Dated 2-4-53 (Sd) Raghunath Prasad Silawat.
Balance due after understanding the account. Whenever Mangilal Ji Nainala demands the same, I shall pay with interest. (Sd.) Raghunath Prasad in his own handwriting D/- 2-3-53.
This document is contained in the Khata Bahi. There is one anna stamp affixed to it. The last part of the document beginning from 'balance due' is written in the handwriting of the defendant and signed by him. The rest of the document is in the handwriting of the plaintiff or his Munim and is signed by the defendant. The learned Judge of the trial court has held that as the document was not negotiable being in a Bahi, it was not a promissory note. For this he relied on a Division Bench decision of this Court in the case of Chiranji Lal v. Ramnath, AIR 1953 Raj 211.
6. It was urged by the learned counsel for the defendant-applicant that the test of negotiability adopted by the trial court was not in consonance with he definition of the promissory note-in Section 2(22) of the Stamp Act which runs as follows:
' 'promissory note' means a promissory note as defined by the Negotiable Instruments Act, 1881: it also includes a note promising the payment of any sum of money out of any particular fund which may or may not be available, or upon any condition or contingency which may or may not be performed or happen.'
It was urged that the above definition was wider than the definition of promissory note in the Negotiable Instruments Act and that last portion of the definition embraced various documents which are not negotiable. It was also urged that the definition of the promissory note given in Section 4 of the Negotiable Instruments Act does provide for the negotiability of the document rather, it is Section 13 which defines the negotiable instrument.
Under Section 13, promissory note is considered a negotiable instrument only when it is payable either to order or bearer. A promissory note which is not payable to order or to bearer cannot be taken to be negotiable instrument. Thus it was urged that negotiability was not a test for holding a document to be a promissory note even under1 the Negotiable Instruments Act. Learned counsel for the defendant has strongly relied on the autho-rity of the Allahabad High Court in the case of Sushil Chander v. Wali Uliah, AIR 1941 All 158. He also relied on the recent decisions of this Court in the casos of Gordhan Singh v. Suwalal and Kalyanbux (Civil Revn. No. 81 of 1956); Balabux v. Mst. Savitri Devi. (Civil Rcvn. No. 130 of 1956); & Balabux v. Ramcshwarlal, (Civil Rcvn. No. 156 of 1956), D/- 5-1-1959: (AIR 1959 Raj 156). Learned counsel for the plaintiff urged that the Division Bench case of AIR 1953 Raj 211 has laid down the law for the documents executed in a Bahi & that authority is not in any way affected by subsequent decisions of this Court. It was urged that the document in the present case was of the same nature as the document in Chiranji Lal's case, AIR 1953 Raj 211.
7. Learned counsel for the defendant distinguished Chiranji Lal's case, AIR 1953 Raj 211 from the instant case only in one respect, that is, in the plaint filed by the plain iff the document had! been referred to as promissory note in para No. 3, On the basis of this description of the document given in the plaint it was urged that the plaintiff him-Self had referred to the document as a promissory note in the plaint and from this it must be taken that the parties intended to execute a promissory note.
8. Having referred to the respective contentions of the parties, I proceed to determine the nature of the document. The document at the outeet refers to the balance due under the previous account. This entry in the document is signed by the debtor. Standing by itself it is a mere acknowledgment. Then there is the statement by the defendant that the balance was due after going through the account. This is followed by a promise by the defendant to pay the amount with interest to the plaintiff. The document is again signed by the defendant. Although there is no mention of the sum of Rs. 30167/4/6 in the entry made by the defendant in his handwriting yet the document must be read as a whole and it may be taken that the defendant promised to pay the sum of Rs. 30167/4/6 with interest as the entry preceding the entry in the handwriting of the defendant clearly mentioned that account.
9. The first point for determination in this case although it was not argued at the bar, is whether a document which provides the payment of a sum of money with interest but does not specify the rate of interest can be taken to be one in which there is an undertaking to pay a certain sum of money. The Indian Stamp Act adopts the definition of the promissory note given in the Negotiable Instruments Act and enlarges if by including some other documents. Under Section 4 of the Negotiable Instruments Act the promissory note is defined as follows:
'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.'
It is clear from the above definition that the sum of money promised to be paid must be certain and definite amount. In the instant case there is a promise for the payment of Rs. 30167/4/6 with interest, but the rate of interest is not specified. There can be no doubt that there was an agreement for the payment of interest between the parties. Had there been a mention of rate of interest in the document, there would not have been any uncertainty about the sum of money payable because in that case it would have been merely a matter of calculation as to what was the amount payable on a particular date.
Paragraph 3 of Section 5 of the Negotiable Instruments Act provides that the sum payable may be certain within the meaning of Sections 4 and 5 although i includes future interest. That paragraph may be taken as merely an explanation to Section 4 and it may be treated as a part of Section 4. It may further be taken that in the definition of promissory note under the Stamp Act, Section 4 and paragraph 3 of Section 5 of the Negotiable Instruments Act are to be incorporated as both of them taken together give the complete definition of promissory note under the Negotiable Instruments Act. If the rate of interest is specified in the document the certainty of the sum payable is no wav affected as it may be merely a matter of calculation to arrive at the sum payable. I may take it that a sum of money is certain even though it can be arrived at by making certain calculations.
I may go so far as to say that the document by itself need not mention the sum of money payable under it in so many words to fall within the definition of the promissory note but if as a result of calculations the process of which is indicated in the document itself a definite sum can be arrived at, it cannot be said in such a case that there is no certainty about the sum of money. But if there is any vagueness in the document or any extrinsic evidence is to be imported for construing the document on this point, it cannot be said that that document is a promissory note within the meaning of Section 2(22) of the Stamp Act.
10. In my opinion in determining the nature of an instrument under the Stamp Act it is notpermissible to import any extrinsic evidence to remove any vagueness relating to the certainty of the amount payable under it. It is true that the terms; of a document may be explained in the light of the surrounding circumstances but if there is some lacuna in the document it cannot be fulfilled (sic)i by extrinsic evidence. It has been held by Chandavarkar J., in the case of Sakharam Shankar v. Ramchandra Babu, 5 Bom LR 28 (FB) that a document is to be looked at as it stands in determining the question whether it is sufficiently stamped. That authority has been followed bythe Bombay High Court in the case of Ramprasad Shivlal v. Shrinivas Balmukund, AIR 1925 Bom' 527. I may also quote the following observations in the case of Wirth v. Weigel Leygonie and Co. Ltd., 1939-3 All ER 712:
'I think that I ought first to ask myself whether or not these documents are promissory notes so far as the common law meaning or definition in the Bills of Exchange Act, 1882, is concerned, and then whether or not, if they are not, the Stamp, Act, 1891. includes them, and I have come to the conclusion that I ought not to hold that these are promissory notes. I think that it is right to say, in judging that question, that one must look at the document as it stands.'
11. In the instant case the document as it stands speaks that a particular sum of money will be paid with interest but the rate of interest is not specified. Learned counsel for the defendant has argued that assistance can be taken for construing this document from the allegation made in the plaint that the interest agreed upon was at 1 per cent., but the reference to the plaint will be only incorporating some other agreement between the parties as contained in the document relating to the rate of interest. In my opinion this is not permissible when the nature of the document under the. Stamp Act is to be determined.
It may be argued that paragraph 3 of Section 5, Negotiable Instruments Act merely mentioned that the sum payable may be certain although it includes future interest and it is not mentioned that the rate of interest must be specified. The very phraseology shows that the future interest that is included in the sum payable must be certain otherwise the sum payable will not be certain. Though the rate of interest may vary from lime to time yet the total amount of future interest included in the sum payable must be certain andlot indefinite.
With reference to the Bills of Exchange the same paragraph says that the sum payable may be certain although it is payable at an indicated rate of interest or according to the course of exchange. This only shows that the legislature attached sanctity to the certainty of the sum payable and said that it was not in any way offended by reason of a provision in the document about interest if that could be calculated with certainty I may also refer to the following passage in Halsbury's Laws of England, Third Edition, Volume 3, paragraph 235:
'In England, where a bill or note is expressed to be with interest but no rate is prescribed, it will he presumed to be at five per cent. An instrument: payable with 'lawful interest' is thus not invalid for uncertainty.'
Reference in the foot note is made to the case of Warrington v. Early, (.1853) 118 ER 953. In that case a promissory note was made payable six months after date with lawful interest. After it had been signed, without the assent of the maker, but with the assent of the holder, there was added, in the comer of the note, 'interest at six per cent, per annum.' It was held that this addition materiallyaltered the contract and that the holder could not recover on the note against the maker. This case is clearly distinguishable as the point into consideration in that case was whether there had been any material alteration.
Another case has been referred in the footnote to paragraph 235 and it is Lamberton v. Aiken, (1899), 37 SC LR 138, where a note for a sum of money together with any interest that may accrue thereon' was held invalid in Scotland on the ground of uncertainty. In England there might be presumption in a case of promissory note payable with interest that the rate of interest is at 5 per cent. If because of such presumption or on account of mercantile usage there is no uncertainty about the rate of interest the sum payable with interest may not be regarded as uncertain. But where there is no such presumption the view taken in Lamberton's case, (1899) 37 SC LR 138, in my humble opinion is sound.
12. In this connection I may also take notice of Section 80 of the Negotiable Instruments Act. Under that section when no rate of interest is specified in the instrument, interest on the amount due thereon shall be calculated at six per centum per annum. This section provides only as to at what rate the interest is to be awarded. It does not say that there is any presumption that the parties must be taken to have agreed upon to pay interest at the rate of six per cent, per annum. It is under Section 118 that provisions have been made for making presumptions. Then again Section 80 cannot be part of the definition of promissory note. It is Chapter II of the Negotiable Instruments Act which deals with the definitions. Under Section 2(22) of the Stamp Act it is only the definition of the promissory note given in the Negotiable Instruments Act that can be incorporated and not all the provisions of the Negotiable Instruments Act. Their Lordships of the Bombay High Court in Ramprasad Shivlars case. AIR 1925 Bom 527 refused to take into consideration Section 118 in determining the admissibility of the document. Maclcod C. J., observed as follows :
'We do not think that the provisions of Section 118 of the Negotiable Instruments Act, 1881 affect the question at all with regard to the admissibility in evidence of a document which depends entirely upon the document as it stands.'
13. I am conscious of cases like Best v. Haji Muhammad Sait, ILR 23 Mad 1.8 in which observations have been made that Section 80 applies equally to the case in which rate of interest is mentioned as to the case in which interest is not mentioned, but those cases were regarding the interpretation to Section 80 and did not deal with the aspect of uncertainty of the sum payable.
14. In my humble opinion the document in the instant case is not a promissory note as the sum payable under it is not certain as required under Section 4 of the Negotiable Instruments Act.
15. Then comes the question whether the document in the present case being executed in at Bahi is not a promissory note as it was not negotiable. Learned counsel for the defendant argued that the test of negotiability should not be applied as it cannot be gathered from anything in Section 2(22) of the Stamp Act and that there are several non-negotiable documents which will come within the definition of promissory note under the Stamp Act by virtue of enlarged definition.
It is true that Section 2(22) includes several documents which are not negotiable. But inclusive paragraph says clearly that it is to include a note promising the payment of any sum of money outof any particular fund which may or may not be available or upon any condition or contingency which may or may not be performed or happen, The word 'note' in the inclusive part of the definition clearly means a promissory note as defined in the first part of it, i.e., a promissory note as defined by Negotiable Instruments Act, 1881.
This again means that barring 'the cases in which the inclusive part of the definition may be applicable a promissory note to fall within the definition of the Stamp Act must be a promissory note under the Negotiable Instruments Act. The definition of promissory note in Section 2(22) must .be construed in the light of the definition of promissory note in the Negotiable Instrument's Act. The contention of the learned counsel is that the definition of promissory note in the Negotiable Instruments Act may be bodily incorporated in the definition of the promissory note under the Stamp Act & then what is to be seen is whether a particular document falls within that definition or not. I proceed to examine this contention.
16. I may first refer to the case of Mortgage (Insurance Corporation, Ltd. v. Commissioners of Inland Revenue, (1888) 21 QBD 352. In that case the definition of promissory note under Section 49 of the English Stamp Act, 1870 was under consideration. The first part of Section 49 provided that 'the1 term 'promissory note' means and includes any document or writing (except a bank note) containing a promise to pay any sum of money.' Referring to the words 'any document containing a promise to pay any sum of money', Lindley, LJ. observed as follows :
'It has been pointed out by every one who has had to construe the section that those words cannot receive a literal meaning, for, if they did, all sorts of documents as to which it would be absurd to suppose that they would he treated for any purpose as promissory notes, such as bonds, mortgages, etc., which contain a promise to pay, would have to be stamped as promissory notes. To make the section intelligible some rational limitation must be placed upon the words, but the difficulty is, to know what limitation. The section speaks of a document containing a promise to pay a sum of money.
In my opinion that means a definite sum of money, not a fluctuating or unascertained sum; and I also think that 'containing a promise to pay must mean that that is the substance of the document, the whole contents; if cannot mean containing a promise to pay forming one of a number of stipulations. If the instrument is not merely a promise to pay but contains a promise to pay in connection. with a number of other stipulations, then I think it is not a promissory note within the meaning of the section. Unless some restriction o that- kind! is placed upon the words of Section 49, they would include every document containing a promise to pay.' This case has been followed in numerous English cases and has been quoted with approval by their Lordships of the Privy Council in the case of Mo-hammad Akbar Khan v. Attar Singh, AIR 1936 PC 171 while construing the provisions of the Indian Stamp Act The effect of that decision is that restricted meaning is to be given to the definition of a promissory note under the English. Stamp Act. That restricted meaning as observed by Bowen, LJ. in that case is that the contents of the document should contain substantially 'a promise to pay a definite sum of money and nothing else. The definition of the promissory note under the Indian Stamn Act is to be restricted in the same manner.
17. Is the definition of the promissory note in the Indian Stamp Act further to be restricted in any other manner? I would say 'Yes'. Another restriction flows from the rule of construotion to be adopted in such cases. This rule is laid down by Baron Pollock in Grenfell v. Commissioners of Inland Revenue, (1875) 1 Ex D 242 at p. 248 :
'As to the construction of the Stamp Act, I think it was very properly urged that the statute is not to be construed according !o the strict or technical meaning of the language contained in it hut that it is to be construed in its proper sense, meaning, of course, by the words 'popular sense' that sense which people conversant with the subject matter with which the statute is dealing would attribute to it.'
The grounds for adopting that rule are much stronger under the Indian Stamp Act than under the English Stamp Act. In the definition of a promissory note under the Indian Stamp Act the definition of promissory note under the Negotiable Instruments Act has been adopted. As observed by their Lordships of the Privy Council in Grenfell's case, (1875) 1 Ex D 242 at p. 248 that 'the Indian Stamp Act does not suffer from the defect of the English Stamp Act in ignoring the definitions in the Bill of Exchange Act. 1882, and enacting a definition of its own. By virtue of definition of the negotiable instruments contained in Section 13 a promissory note payable to order or to bearer is a negotiable instrument. If the defect of non-specification of rate of interest in the document in question is ignored it should have been negotiable to be a promissory note.
But being executed in a Bahi, it cannot be taken out of it without tearing the leaf and it cannot be transferred in order to be negotiable under Section 14 of the Negotiable Instruments Act. Here then is a document which satisfies all the ingredients of the definition of promissory note under Section 4 of the Negotiable Instruments Act but which the parties never intended to be negotiable by delivery. Such document cannot be a promissory note within the meaning of the Negotiable Instruments Act.
It is on this reasoning that the test of negotiability enters into the definition of the promissory note. No doubt under the inclusive part certain non-negotiable documents are included within the definition of the promissory note in the Stamp Act, but as pointed out above, the document must satisfy all the tests of being a promissory note under the Negotiabfe Instruments Act if the conditions falling under the inclusive part of the definition are ignored. It may become non-negotiable because these conditions have been added to it but otherwise it must fulfil all the tests of being a promissory note as laid down in the Negotiable Instruments Act.
18. Their Lordships of the Privy Council in the case of Mohammad Akbar Khan AIR 1936 PO 171 took this test into consideration. I may quote the following observations at page 174 :
'Their Lordships prefer to decide this point on the broad ground that such a document as this is not and could not be intended to be brought within a definition relating to documents which are to be negotiable instruments. Such documents must come into existence for the purpose only of recording an agreement to pay money and nothing more, though of course they may state the consideration. Receipts and agreements generally are not intended to be negotiable, and serious embarrassment would be caused in commerce if the negotiable net were cast too wide.'
19. In the case of Karam Chand v. Firm Mian Mir Ahmad Aziz Ahmad. AIR 1938 PC 121,their Lordships of the Privy Council had occasion to consider the document in the following language: 'Received from you this 5th of Asuj, 1986, Sam-bat corresponding to 20-9-1929. a cheque for Rs. 10,000 drawn by you 011 Messrs. Grindlay and Co., Ltd., Peshawar. The amount would be repaid with interest thereon at the rate of Rs. 11/4/- p.c. Time ten months. The principal amount will be paid with interest after ten months from this date.' There was another similar document. Both those documents were called Exs. B and C. The plaintiffs did not found their suit on Ex. B and Ex. C as there was a strong current of authority in India to the effect that documents of this character containing a promise to pay come within the ban of Section 35 of the Stamp Act. Their Lordships observed that 'a decision of this Board in Mohammad Akbar Khan's case, AIR 1936 PC 171 has made it clear that the shadow resting upon these exhibits throughout the case was unreal. The documents of this nature which were clearly never intended to be negotiable instruments at all are' not promissory notes and are not, therefore, for want of a stamp, inadmissible in evidence.
20. The document in the present case is more in the nature of the settlement of account between the parties with a promise to pay. At least this much is certain that being executed in a Bahi it was not intended to be negotiable. In my humble opinion such a document cannot Fall within the definition of promissory note under the Stamp Act. If the document on the face of it is of such a nature that it could not have been intended to be negotiable such a document cannot be a promissory note. Learned counsel for the defendant argued that even the plaintiff has called this document as a promissory note at one place in the plaint. But at another place in the plaint, he has called it as an account (khata).
It appears that the plaintiff was not very clear in his mind and he left it to his legal adviser to call the document whatever he wished while drafting the plaint. Any way this circumstance is not much material as the main consideration which is prevailing upon me for not holding it a promissory note is that it was never intended by the parties to be negotiable and could not have been so intended as it was executed in a Bahi the leaves of which were so stitched as not to permit the taking out of the document without tearing off the leaf containing the document.
21. Reliance was placed by the learned counsel for the defendant on the case of AIR 1941 All 158. I do not find that the document in that case was in any book of account. If the document of the nature in that case was on a separate piece of paper I have no doubt that the case was correctly decided. Learned counsel relies on the following observations at page 162 :
'In this country after the closing of account and in acknowledgment of liability which arisee thereunder, often documents are passed which are variously called sarkhats or promissory notes.'
He contends that these observations are applicable to the document in Sarkbat Babies. If such is the import of these observations, I respectfully disagree with them.
22. The view that has been taken in this case is the same that was taken by a Division Bench of this Court in the case of AIR 1953 Raj 211 and I respectfully follow that ruling. The other cases of this Court relied on by the learned counsel do not lay down the law to the contrary. For reasons mentioned above, I hold that the document in this case is not a promissory note but an agreement.
23. The result is that the revision application has got no force and is dismissed with costs.