1. This is a Reference under Section 61, Stamp Act, by the Collector of Bogra. The document in question was admitted in evidence by the Subdivisional Munsif of Bogra exercising Small Cause Court powers in Small Cause Court Suit No. 732 of 1834, as not requiring a stamp. We have perused the documents. It appears to us to be an acknowledgment by the debtors of their liability to their creditor under a promissory note for the purposes of saving limitation containing an express promise to pay. A simple acknowledgment, which takes the case out of the Statute of limitation, implies a promise to pay. See Maniram v. Seth Rupchand, (1909) 33 Cal 1047. Such an implied promise by itself does not render the document liable to duty higher than what is required under Article (1) of Schedule (1), Stamp Act. But the addition of words such as are stated in the proviso to that article indicating an express promise to pay would make the document liable to duty as an agreement or a bond or a promissory note. In the document before us there are unconditional acknowledgments for saving limitation. It also contains the world 'we are going to repay the whole debt soon.' These additional words indicate an express promise to pay. The document therefore does not come under that Article 1. The promise to pay contained in the document does not render it liable to stamp duty as a promissory note or a bond. Reading the document as a whole it appears to us that the debtors expressly promised to pay the entire debt as the creditors agreed not to sue them before the expiration of the period of limitation. It is however contended by Mr. Bagchi appearing on behalf of the creditors that the document simply contained a written request or offer and was therefore not an agreement within the meaning of Article 5 of Schedule 1, Stamp Act, as there is nothing to show that it was accepted in writing. Art 5 however refers to an agreement or memorandum of an agreement:
The agreement is the writing by which the agreement is made. The memorandum of agreement is the record of an already completed oral agreement. It is treated as the agreement as it was the intention of the parties that it should be so treated and that it should be the only appropriate evidence of the agreement.
2. See Sir Dinshaw Mulla's Commentary, on the Stamp Act, Second Edition, 181. The language of the document indicates that it was the written record of a prior oral agreement. The document therefore was liable to stamp duty under Article 5, Stamp Act. We therefore accept the reference and declare that the document should not have been admitted in evidence by the Small Cause Court Judge without the payment of Rs. 8-4-0 as duty and penalty under Section 35, Stamp Act. We impound the document. Let a copy of this declaration and the document be sent to the Collector.