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Bhanwar Lal and ors. Vs. Firm Mangalji Chhoteylal, Baran Etc. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Nos. 30, 31, 32, 131 of 1981
Judge
Reported inAIR1981Raj157; 1981()WLN450
ActsStamp Act, 1899 - Sections 2(2) and 2(3); Negotiable Instruments Act, 1881 - Sections 19
AppellantBhanwar Lal and ors.
RespondentFirm Mangalji Chhoteylal, Baran Etc.
Appellant Advocate D.K. Soral and; G.S. Bafna, Advs.
Respondent Advocate S.M. Mehta and; A.K. Rajvansi, Advs.
DispositionRevision dismissed
Cases ReferredHanuman v. Fattu
Excerpt:
.....fail and are hereby..........chand v. shanker datta, 1965 raj lw 33, jagat narayan j. (as he then was) was also dealing with a hundi payable on a future specified date, like the hundis in the instant cases. he held that if the amount of the hundi is made payable on a future stated period or date, the hundi falls within the definition of 'bill of exchange payable on demand', as given in section 2(3) of the act. he took special note of the error committed by the trial judge in not treating the hundi in that case to be a 'bill of exchange payable on demand' merely on the ground that its payment had been postponed to a future date. in this context, the learned judge called special attention to the provisions of section 2(3)(b) of the act and pointed out that the said provisions give an extended meaning to the.....
Judgment:
ORDER

1. The four petitions of revision, listed above, arise out of four different suits for recovery of money pending in the court of Additional District Judge, Baran. The suits are based on similarly vorded instruments, known in the commercial circles as Shahjog hundis. The hundis are written in dialectal Hindi. One of the hundis may be translated here, as illustrative of others, as follows:--

Written at the auspicious place, Shri Baran; please accept salutations from Shri Panna Lalji Birdhi Chandji to Shri Panna Lalji Birdhi Chandji. We have received here from Mahendra Kumar Aggarwal a sum of Rs. 5,000/- in lieu of this hundi. The amount shall be paid to the Shah (a respectable person) on Phagun Badi 10, 2032 BK, at once according to the custom of Shahjog hundis.

Signature

2. One of the common preliminary objections raised by the respective defendants in these suits is that the hundis in question are chargeable with duty under Schedule I, Article 13, Indian Stamp Act, 1899 (hereafter called the Act), being hundis covered by the definition of the expression 'bill of exchange', as contained in Section 2(2) of the Act, and that since they are not duly stamped, none of them can be admitted in evidence by the Court for any purpose whatever. The trial Court repelled the preliminary objection, and instead held that the Sahajog hundis involved in these suits fall within the definition of 'bill of exchange payable on demand', as defined in Section 2(3) of the Act and, as such, are not chargeable with duty under the Act.

3. Aggrieved by these orders, the concerned defendants in each suit have challenged them and filed their respective petitions of revision from these orders.

4. The only question which falls for determination in these petitions, therefore, is whether the hundis in question are 'bills of exchange' as defined in Section 2(2), or 'bills of exchange payable on demand,' as defined in Section 2(3) of the Act. It is not disputed that if they are covered by Section 2(2) they are chargeable with duty and since none of them is duly stamped they cannot be admitted in evidence for any purpose. If, on the other hand, they are found covered by Section 2(3), they are not chargeable with duty and, in that case, the impugned orders made by the trial court must be affirmed.

5. Now, so far as this Court is concerned, the matter cannot be treated as res integra. In Mool Chand v. Shanker Datta, 1965 Raj LW 33, Jagat Narayan J. (as he then was) was also dealing with a hundi payable on a future specified date, like the hundis in the instant cases. He held that if the amount of the hundi is made payable on a future stated period or date, the hundi falls within the definition of 'bill of exchange payable on demand', as given in Section 2(3) of the Act. He took special note of the error committed by the trial Judge in not treating the hundi in that case to be a 'bill of exchange payable on demand' merely on the ground that its payment had been postponed to a future date. In this context, the learned Judge called special attention to the provisions of Section 2(3)(b) of the Act and pointed out that the said provisions give an extended meaning to the expression 'bill of exchange payable on demand'. If I may say so with respect the learned Judge was perfectly right in making this observation. If we read the definition of 'bill of exchange payable on demand' as given in Section 2(3) of the Act, it may be somewhat surprising to discover that the expression 'bill of exchange payable on demand' may, literally speaking he quite often a misnomer, for the instruments which the definition takes in may not actually be payable on demand. Let us now read the definition to see for ourselves the deep chasm between the literal meaning of the expression 'bill of exchange payable on demand' and its technical meaning as given in the definition.

'Bill of exchange payable on demand' includes:--

(a) an order for the payment of any sum of money by a bill of exchange or promissory note, or for the delivery of any bill of exchange or promissory note in satisfaction of any sum of money, or for 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 not be performed or happen;

(b) an order for the payment of any sum of money weekly, monthly, or at any other stated periods; and

(c) a letter of credit, that is to say, any instrument by which one person authorizes another to give credit to the person in whose favour it is drawn;

6. This definition is not exhaustive. It indicates some of the instruments which may properly be described as 'bills of exchange payable on demand'. According to this definition, some of the instruments which literally speaking, are not payable on demand but are nevertheless classified as 'bills of exchange payable on demand' may be stated as follows :--

(i) An order for the payment of any sum of money out of any particular fund which may or may not be available.

(ii) An order for the payment of any sum of money upon any condition or contingency which may or may not be performed or happen.

(iii) An order for the payment of any sum of money weekly, monthly, or at any other stated periods.

It will be seen that none of the three types of instruments enumerated above can be said to be payable on demand, properly so called, but they are all included in the definition of the expression 'bill of exchange payable on demand' as given in Section 2(3) of the Act. We must accept the meaning of 'bill of exchange payable on demand' as given in Section 2(3) of the Act and in doing so we have to keep aside our own understanding of the meaning of this expression based on the literal meaning of different words which it consists of.

7. Another case which has a direct bearing on this controversy is reported in Kanhaiya Lal v. Dulichand, 1970 Raj LW 332. The hundi which was under consideration in that case was in these words;

Kanhaiyalal Dulichand of Manohar Thana conveys his greetings to Kanhaiyalal Dulichand of Manohar Thana. We have deposited the sum of Rs. 3,000/- for this hundi with Kanhaiyalal Shrichand of Manohar Thana. Please pay to a Shah in accordance with the custom with regard to Shah Jog Hundis on Asad Badi 13 Smt. 2014.

Sd/- Duli Chand 7-5-67

It will be seen that this was a hundi to a Shah payable after a stated period or date. It was held in the cited case that the definition of a 'bill of exchange payable on demand' under Section 2(3) of the Stamp Act is much wider than what would be understood by this expression as used in the Negotiable Instruments Act, 1881. Following his earlier decision in Mool Chand v. Shanker Datfa (1965 Raj LW 33) (supra), Jagat Narayan J. held that the Shahjog hundi under consideration by him was a 'bill of exchange payable on demand' as defined in Section 2(3) of the Act.

8. It is noteworthy that if the hundi in Kanhaiyalal's case (1970 Raj LW 332) (supra) could be adjudged on the basis of Section 19, Negotiable Instruments Act. 1881, it could not possibly be described as a 'bill of exchange payable on demand' because according to Section 19, it is only if no time for payment is specified in a bill of exchange that it can be described as a bill of exchange payable on demand, and not otherwise. When we are dealing with the question as to whether a particular instrument is chargeable with duty or not, and if chargeable, whether it has been duly stamped, we must decide the matter solely with reference to the provisions of the Stamp Act.

9. Learned counsel for the petitioners contended that since the payee could not enforce payment on any of these hundis before a certain date in future, it would be wholly wrong to describe these hundis to be 'bill of exchange payable on demand'. He cited Suraj Ram Knurana v. Hari Rattan (1973) 75 Pun LR (D) 88, in support of his argument. It is true that a learned single Judge of the Delhi High Court in the cited case held that a hundi containing a promise of payment after 180 days of the date of its execution cannot be held to be a 'bill of exchange payable on demand.' I have carefully gone through the report of the cited judgment of the learned single Judge and find myself unable to agree with his reasoning. It will be seen that although the controversy before the learned Judge required to be adjudicated upon in accordance with the provisions of the Stamp Act, 1899, he referred to the provisions of Section 19, Negotiable Instruments Act, 1881 with a view to showing that the hundi under consideration by him could not be held to be a 'bill of exchange payable on demand'. As already explained by me in an earlier part of this judgment, the issue as to whether a document is duly stamped or not must be decided exclusively on the basis of the provisions of Stamp Act, 1899. Any reference to the provisions of Negotiable Instruments Act, 1881, unless such a reference is warranted by the provisions of Stamp Act itself is apt to result in an erroneous decision of the issue.

10. Before concluding discussion of the case law, it may be mentioned here that Mool Chand v. Shanker Datta (1965 Raj LW 33) and Kanhaiyalal v. Dulichand. (1970 Raj LW 332), the two single Bench decisions of this Court discussed above, were not cited before the learned single Judge of the Delhi High Court who decided Suraj Ram Khurana's case, (1973-75 Pun LR (D) 88) mentioned above. Instead, a single Bench decision of this Court reported in Tikab Chand v. Laxmi Chand, AIR 1961 Raj 87, was cited before him and he did not accept the reasoning in Tikam Chand's case as correct. Jagat Narayan J. who decided Tikam Chand's case had himself explained subsequently in Hanuman v. Fattu, 1967 Raj LW 466: (AIR 1967 Raj 235) that his reasoning in Tikam Chand's case was not correct. If counsel concerned appearing before the learned single Judge of the Delhi High Court had cited before him Mool Chand's case and Kanhaiyalal's case, instead of citing Tikam Chand's case, it is possible that the judgment in Suraj Ram Khurana's case might have been different.

11. For all these reasons, I hold that the hundis in question are bills of exchange payable on demand as defined in Section 2(3) of the Stamp Act, 1899 and that as such they are not chargeable with duty. The impugned orders passed by the trial Court must therefore be affirmed. These petitions of revision fail and are hereby dismissed. The parties are left to bear their own costs.


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