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Sivasubramania thevan Vs. Kalankarayan Konar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1941Mad868; (1941)2MLJ301
AppellantSivasubramania thevan
RespondentKalankarayan Konar
Cases ReferredGriffin v. Weatherby
Excerpt:
.....the written statement but i am not satisfied that the admission is so clear as to justify a decree for that amount now and i am influenced in this decision by the fact that no such application was made to the lower..........colombo on the 11th march, 1934 in favour of one arunachala thevar. the promissory note was at the time stamped with one anna adhesive stamp, the correct stamp for a note in british india and was duly cancelled. that must be taken to have happened on the 11th march, 1934. on or before the 11th march, 1935, the promissory note came into british india and was assigned to the plaintiff. the relevant portions of the stamp act are:section 3. subject to the provisions of this act and the exemptions contained in schedule i, the following instruments shall be chargeable with duty of the amount indicated in that schedule as the proper duty therefor respectively, that is to say--(b) every promissory note drawn or made out of british india on or after that day and accepted or paid, or presented for.....
Judgment:

Mockett, J.

1. This is a civil revision petition to revise an order of the learned District Munsif, Tinnevelly and it relates to the Stamp Act. The defendant made a promissory note in Colombo on the 11th March, 1934 in favour of one Arunachala Thevar. The promissory note was at the time stamped with one anna adhesive stamp, the correct stamp for a note in British India and was duly cancelled. That must be taken to have happened on the 11th March, 1934. On or before the 11th March, 1935, the promissory note came into British India and was assigned to the plaintiff. The relevant portions of the Stamp Act are:

Section 3. Subject to the provisions of this Act and the exemptions contained in Schedule I, the following instruments shall be chargeable with duty of the amount indicated in that schedule as the proper duty therefor respectively, that is to say--(b) every promissory note drawn or made out of British India on or after that day and accepted or paid, or presented for acceptance or payment, or indorsed, transferred or otherwise negotiated, in British India.

2. Section 19 provides that:

The first holder in British India of any promissory note drawn or made out of British India shall, before he presents the same for acceptance or payment or endorses, transfers or otherwise negotiates the same in British India, affix thereto the proper stamp and cancel the same.

3. There is a proviso that:

If, at the time any such bill of exchange or note comes into the hands of any holder thereof in British India, the proper adhesive stamp is affixed thereto and cancelled in manner prescribed by Section 12 and such holder has no reason to believe that such stamp was affixed or cancelled otherwise than by the person and at the time required by this Act, such stamp shall, so ' far as relates to such holder, be deemed to have been duly affixed and cancelled.

4. The important words in Section 19 are the opening words, 'The first holder in British India', The Act does not seem to be concerned with the possession o| the bill or promissory note before then and indeed Seshagiri Aiyar, J., in Kunhi Koya Haji v. Assan Bava Haji (1918) 36 M.L.J. 188 has held that a suit can be brought on a promissory note made outside British India as between promisor and promisee even though unstamped. But the first holder in British India must affix a proper stamp and cancel the note before he presents the same for acceptance or payment or endorses or transfers or otherwise negotiates the same in British India. So far as a promissory note is concerned stamping and cancellation seem to be required only before transfer or indorsement. It has been held in Mahomed Rowthan v. Mahomed Hussain Rowthan (1899) 9 M.L.J. 135 : I.L.R. Mad. 337 that this provision (Section 19) is only applicable to a holder where there is one of those acts set out in the section and that it need not be stamped in the manner provided when it was not dealt with in any of the ways set out. See also Griffin v. Weatherby (1868) L.R. 3 Q.B. 753. Mr. Justice Shephard in Ebrahim Rowthan v. Abdul Rahiman Mahomedi : (1898)8MLJ182 , following Griffin v. Weatherby3, also took the view that the first holder who was the plaintiff had, before presenting it for acceptance or payment or before endorsing, transferring or otherwise negotiating it, to affix the proper stamp but none of these things had happened and therefore there was no obligation to affix any stamp. But in this case, it is common ground that the note has been endorsed to the proper plaintiff. I think that the first holder whether he is the promisee himself or his endorsee should have affixed the stamp and that the time for affixing the stamp must necessarily be some time in British India because it is the first holder in British India who is affected.

5. I would again refer to Seshagiri Aiyar, J's decision that a promissory note made abroad can be sued on without a stamp at all. There is a proviso to Section 19 as quoted above and the learned Counsel for the petitioner claims the benefit of that proviso. I do not think it can assist him because it must be manifest that on a perusal of the promissory note, it is clear and he must have known that it was made at Colombo and therefore that the stamp had been affixed and cancelled before it came into British India and therefore before it came into the hands of the holder in British India as I have already indicated and that is only then and previous to any of the acts set out in Section 19 that the time for affixing the proper stamp and cancelling it arises. The rules under the Act are consistent with this view. Rule 17 reads:

The following instruments when stamped with adhesive stamp shall be stamped with the following descriptions of such stamps namely,(a) Promissory notes drawn or made out of British India and chargeable with a duty of more than one anna, with stamps bearing the words 'Foreign Bill'.

6. It is evidently the policy of the Legislature that the Act commences to operate on promissory notes and bills from the moment they are endorsed, transferred or otherwise negotiated or presented for payment and it is at a moment of time before those processes began and in British India that the affixing of the stamp and cancellation must be done. Strangely enough the Legislature does not appear to be interested in whether a promissory note has or has not been stamped outside British India--with the equally strange result that a note stamped outside British India has to be stamped, again before indorsement.

7. Under the circumstances I am constrained to hold that the ruling of the learned District Munsif was right.

8. It is further argued that there is an admission in the pleadings that Rs. 50 is due. The pleadings have not been printed or typed and no objection seems to have been taken before the learned District Munsif. I have read the written statement but I am not satisfied that the admission is so clear as to justify a decree for that amount now and I am influenced in this decision by the fact that no such application was made to the lower Court.

9. This civil revision petition will therefore be dismissed with costs.


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