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Sib Narayan Mukherjee Vs. Janak Upadhya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 1246 of 1962
Judge
Reported inAIR1974Cal203
ActsStamp Act, 1899 - Sections 36 and 61
AppellantSib Narayan Mukherjee
RespondentJanak Upadhya
Appellant AdvocateHarinarayan Mukherjee, Adv.
Respondent AdvocateC.C. Ganguly and ;Sushil Kumar Bajpayee, Advs.
DispositionAppeal allowed
Cases ReferredAnnamalai Chettiar v. Veerappa Chettiar
Excerpt:
- .....it appears, has not considered the effect of section 36 in view of the admitted position that the pronote in question was admitted in evidence.5. the learned counsel for the appellant also contended that the pronote here was a collateral security and the plaintiff is entitled to sue on the debt which was an independent cause of action apart from the pronote. he referred to certain decisions in this connection, particularly sri iswar sridhar lieu v. jahor lal mukhopadhya, 49 cal wn' 37 -- (air 1945 cal 268). it is not necessary for me to deal with the above contention because of the view i have taken on the other point.6. the result is that this appeal is allowed. the judgment and decree of the learned additional district judge are set aside and those of the learned subordinate judge are.....
Judgment:

Debi Prosad Pal, J.

1. The plaintiff is the appellant in this appeal which arises out of a suit instituted against the defendant-respondent for recovery of a sum of Rs. 3,486/-given on account of loan. The plaintiff's case is that the defendant being in urgent need of money for the purpose of carrying on his business borrowed a sum of Rs. 3,000/-from the plaintiff on 26-6-1956 agreeing to pay off the same with interest at the rate of /8/ annas per cent per month on demand and executed a pronote for the same in favour of the plaintiff on the said date. In spite of demand and in spite of presentment of the handnote in suit, the defendant did not pay the plaintiff anything towards the dues of the hand-note in suit. Hence the suit was instituted to recover the sum of Rs. 3,486/- including interest from the defendant. The defendant in his written statement pleaded that as he was in urgent need of money in connection with the marriage of his adopted son, the plaintiff paid only Rs. 1,500/- and got a pronote for Rs. 3,000/-executcd under influence and coercion. The defendant further prayed that he should be allowed to pay the decretal dues, if any decree is passed at all, in instalments. The suitwas decreed by the learned Subordinate Judge at Asansol. It was contended before the Subordinate Judge by the defendant that the pronote cannot be admitted in evidence in view of Section 12 read with Section 35 of the Indian Stamp Act (hereinafter referred to as the Act) since two of the revenue stamps on it had not been defaced with the result that the pronote is an insufficiently stamped document. The learned Subordinate Judge held inter alia that although the document in question was not admissible in view of the mandatory provision of Section 12 read with Section 35 of the Act, the fact of the execution of document having been admitted it need not be proved even though the document in question is not admissible. He further held that in view of the pleading of the parties the plaintiff would be en-tilled to a decree.

2. On an appeal the learned Additional District Judge allowed the appeal and dismissed the suit. The learned Additional District Judge held that as the plaintiff in the present case had no independent cause of action, the defendant's admission of execution of the pronote cannot help the plaintiff in any manner. He further held that if the admission of the defendant is to be used against him such admission should be taken in its entirety and a part of it cannot be used against him.

3. On a second appeal the learned Counsel for the plaintiff-appellant contended that in the present case the pronote being Ext. 1 has been admitted in evidence without any objection. Section 36 of the Act precludes the respondent from raising any objection against the admission of the document at any stage on the ground that -such document has not been duly stamped. Reliance has been placed in this connection upon the decision of the Supreme Court in Annamalai Chettiar v. Vcerappa Chettiar, : AIR1956SC12 . The learned Counsel for the respondent contended that the document in question was admitted in evidence without objection and there was no judicial determination of the admissibility of the evidence and hence it is open to his client to call into question the admissibility of the evidence of (he said document.

4. In my view the contention made on behalf of the appellant has considerable force and should be accepted. It is not in dispute that the pronote being Ext. 1 has been admitted in evidence on 14th July, 1960, by the learned Subordinate Judge without objection. The endorsement of the learned Subordinate Judge appears on the back of the said document. It is also in evidence that two out of four revenue stamps on the said pronote had not been defaced as required under Section 12 of the Act. The pro-note is therefore a sufficiently stamped document. When a question as to the admissibility of a document is raised on the ground that it has not been stamped or has not been properly stamped, the party challenging theadmissibility of such a document has to be alert to sec that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. In the present case when the document was tendered it was admitted as the respondent did not prefer any objection as to the admissibility of the said document. Once a document has been marked as an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, Section 36 comes into operation. That section in its terms provides that when a document has once been admitted in. evidence, such admission cannot be called into question at any stage of the suit or the proceeding on the ground that the instrument had not been duly stamped. The only exception recognised by the section is the classes of cases contemplated by Section 61, which the learned Counsel for the respondent in his fairness submitted, has no application to the present case. Section 36 docs not admit of any other exception. (Javer Chand v. Pukhraj Surana, : [1962]2SCR333 ), Annamalai Chettiar v. Veerappa Chettiar, : AIR1956SC12 (vide supra). In my opinion in view of Section 36 of the Act and in view of the fact that the document has been admitted in evidence being Ext. 1 by Section 36 of the Act the respondent is precluded from raising any objection on the ground that the document is not duly stamped. The learned Additional District Judge, it appears, has not considered the effect of Section 36 in view of the admitted position that the pronote in question was admitted in evidence.

5. The learned Counsel for the appellant also contended that the pronote here was a collateral security and the plaintiff is entitled to sue on the debt which was an independent cause of action apart from the pronote. He referred to certain decisions in this connection, particularly Sri Iswar Sridhar lieu v. Jahor Lal Mukhopadhya, 49 Cal WN' 37 -- (AIR 1945 Cal 268). It is not necessary for me to deal with the above contention because of the view I have taken on the other point.

6. The result is that this appeal is allowed. The judgment and decree of the learned Additional District Judge are set aside and those of the learned Subordinate Judge are restored. The plaintiff will be entitled to a decree for a sum of Rs. 3,486/-. The plaintiff will also be entitled to the costs of this appeal.


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