1. This is an application in revision by the defendant against the order of the Judge, Small Causes Court, Jodhpur, dated the 29th of July 1954.
2. The only question for determination before this Court is whether the document on which the suit is based is a promissory note and inadmissible in evidence, being unstamped. The trial Court has held that it is a bond and that it can be admitted in evidence on payment of penalty.
3. Learned counsel for the non-petitioner has raised a preliminary objection that the orderof the trial Court amounts to admitting the document in evidence, and that the document haying been thus admitted in evidence, its admissibility cannot be challenged by the petitioner. I see no force in this contention and the objection is fit only to be dismissed. It is clear from the order of the trial Court that it has not yet admitted the document in evidence.
It has only passed an order saying that the document would be admissible in evidence if penalty is paid. It is common ground between the parties that the penalty has not yet been paid and therefore, it cannot be said that the trial Court has admitted the document in evidence. On the other hand, it appears that the petitioner filed the present revision petition soon after the said order was made by the trial Court and he obtained an order from this Court directing the trial Court not to accept the penalty till the disposal of this application.
Thus he followed the procedure which was suggested in the case of Moonlal v. Sampatlal, ILR (1952) 2 Raj 1010 (A). In that case it was observed that where a Court finds that a document Is not a promissory note and is admissible on payment of duty and penalty, and thereafter the party pays the duty and penalty, the document will be deemed to have been admitted in evidence and, in view of Section 36 of the Stamp Act, the finding of the Court cannot be challenged in revision. Where, however, the objecting party desires to challenge such a finding, the proper course for it is to apply to the Court immediately to grant him some time for filing revision against the order and in the meantime not to realize the duty and penalty.
It should then file revision during that period and pray to the High Court to stay the proceedings in the lower Court. Learned counsel for the non-petitioner has referred to Ratanlal v. Daudas. ILR (1953) 3 Raj 833: (AIR 1954 Raj 173) (B). It has been urged by him that in that case, a learned single Judge of this Court had held that the document did not require stamp, that it was admissible in evidence and had remanded the case. On an appeal before a Division Bench of this Court, it was held that the said order amounted to admitting the document in evidence.
It is contended by learned counsel that in the present case also, the document should be held to have been admitted by the trial Court on the analogy of the case cited above. The argument is incorrect because in the case of Ratan Lal v. Daudas, (B) it was held by the learned single Judge that the document did not require stamp, that it was therefore admissible in evidence and with that remark he had remanded the case. There was no question of the payment of penalty when it was once decided that the document did not require stamp. In the above case, it was observed by learned Judges of the Division Bench as follows:-
'Where, therefore, a document is held by a Court to be admissible in evidence on ths ground that it requires no stamp, or on the ground that the stamp on it is sufficient, the document must be deemed to be admitted in evidence on the day the Order is passed. It is only in that case in which the Court holds that the document is insufficiently stamped and gives time for paying the duty and penalty that the document would be deemed to be admitted on the lay on which the duty and penalty are paid.'
4. It is crystal clear that the above observation does not help the non-petitioner. On theother hand, it is further clarified in the said case.that if a document is held by a Court to be admissible on the ground that it requires no stamp or on the ground that it is sufficiently stamped, then only the document should be deemed to be admitted on the day the order is passed; but If it is held by the Court that the document is insufficiently stamped and if time is given for paying the duty and penalty, then the document would not be considered to have been admitted, but it would be deemed to be admitted on the day on which the duty and the penalty is accepted by the Court. In the present case, the trial Court has only held that the document would be admissible if duty and penalty is paid and since the duty and penalty has not been paid so far it is absolutely wrong to say that the document has been admitted.
5. Now coming to the main question involved in this application, it would be proper to reproduce here the contents of the document on which the suit is founded:
'Received with thanks the sum of Rs. 300/-(Rupees three hundred only) as loan from Mr. Ramdeo Vyas and will return back in the period of 2 1/2 years (two and half years) without interest. Gopaldas Bohara, 24-8-48.'
6. The trial Court has held that the said document is a bond, but that finding is obviously wrong and was perhaps arrived at by the trial Court without looking into the definition of the bond as given in Section 2(5) of the Indian Stamp Act. The said definition is as follows:
'2(5) '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.'
7. It is clear that the said document would not be covered by (a) because there is no such condition as contemplated in that part. Similarly, (b) and (c) would not apply because the document, is not attested. Learned counsel for the non-petitioner has himself conceded that the document in dispute is not a bond and therefore, it is no use dwelling on this point any more.
8. Learned counsel for the petitioner has urged that the said document fulfils all the requirements of a promissory note, while according to learned counsel for the non-petitioner, the earlier Part of this document is a receipt and then there is an agreement, but according to him, it is not a promissory note. It may be observed that we cannot read the document in different parts . In other words, we cannot say that so much part is a receipt and so much is something else. It is true that if the document had simply ended by saying 'Received with thanks Rs. 300/-only as loan from Mr. Ramdeo Vyas', it would have been a mere receipt, but we cannot read only this part and ignore the regaining one. The document has to be read as a whole and when so read, there is no doubt that it comes within the definition of a promissory note. Section 2(22) of the Indian Stamp Act defines promissory note as meaning a 'promissory note' as defined by the Negotiable Instruments Act, 1881.
9. It also includes a note promising thepayment 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. The present document is not covered by the last portion and, therefore, we have to see if it is covered by the definition which has been given in the Negotiable Instruments Act. That definition is 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.'
10. The essential elements of a promissory note may according to the said definition be analysed as below:
1. It should contain an agreement for the payment of money and money only.
2. The agreement must amount to an undertaking or promise and such an undertaking must be unconditional.
3. The sum payable must be certain.
4. The instrument must be signed by the maker of the instrument.
5. The money must be payable to or to the order of a certain person or to the bearer of the instrument.
6. It should not be a bank-note or a currency note:
11. Now the present document fulfils all these requirements because it contains an agreement for the payment of money and money only. It also contains an unconditional undertaking to pay the money. It also says that the money is to be paid to Shri Ramdeo Vyas. In other words, there is no uncertainty about the money or about the person to whom it is to be paid. It is signed bv the maker and it is not a bank note or a currency note.
12. Learned counsel for the non-petitioner has referred to the case of Mohammad Akbar Khan v. Attar Singh, AIR 1936 PC 171 (C) and urged that in the said case a document of this type was held by their Lordships of the Privy Council to be a mere receipt. It may be pointed out that in that case the plaintiff's case was that he had deposited a sum of Rs. 43,900/- with the defendants on deposit account for two years and at the expiration of two years, the amount was to remain with the defendants in deposit on the condition that the plaintiff would be at liberty to recover the amount with interest at any time he liked and that interest would be credited annually in the books of the defendants.
Their Lordships found that the document under the circumstances was in the nature of a fixed deposit receipt and that it could not be a promissory note, even if it was coupled with a promise to pay. In the present case, the plaintiff himself has mentioned in his plaint that the defendant obtained from him on 24-8-1948 a cash, loan of Rs. 300/- and executed the said document in his favour on the same day. The document in question, therefore, is not a receipt as urged by the petitioner's learned counsel. The mere fact that the receipt of the money has been written first would not make it a mere receipt. Illustration (b) to Section 4 of the Negotiable Instruments Act runs as follows:
'I acknowledge myself to be indebted to B in Rs. 1.000, to be paid on demand, for value received.'
13. The above has been given as an illustration of a valid promissory note. It shows that the mention of the receipt of value in the document would not take it away from the definition of a promissory note. In the present cass, the maker of the instrument has started with admitting the receipt of the money instead of mentioning it in the end as shown in the illustration. This change would not alter the nature of the document and it still remains a promissory note and not a receipt In the case of Green v. Davies, (1825) 107 ER 1946 (D) the instrument was in the following Words:
'Received of A. B. 1001., which I promise to pay on demand, with lawful interest.' and it was held to be a promissory note. Learned counsel for the non-petitioner has next referred to the case of Karam Chand v. Firm Mian Mir Ahmad Aziz Ahmad AIR 1338 PC 121 (E). To my mind that case also is not helpful to the plaintiff because there also the suit was based on a sitta agreement of sale, the meaning of which was obscure and it was supported by copies of two documents.
The defendants had pleaded that the documents were promissory notes, but it was held by their Lordships that the documents were merely receipts and not promissory notes. In the present case, it has not been mentioned by the plaintiff himself if the defendant-petitioner had passed a mere receipt in connection with some agreement. Under the circumstances, the above case is also not helpful to the non-petitioner. The contention of the petitioner's learned counsel is correct that the language of the document itself shows that it was a promissory note and it was wrongly held to be a bond by the trial court. Being unstamped, ft was not admissible in evidence.
14. The revision application is therefore allowed and the trial court's order is set aside. Thepetitioner will get his costs from the oppositeparty.