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Biswanath Bhattacharjee and ors. Vs. Govinda Chandra Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Contract
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal285,51Ind.Cas.88
AppellantBiswanath Bhattacharjee and ors.
RespondentGovinda Chandra Das and ors.
Cases Referred(P.C.) and Muhammad Ewaz v. Birj Lal
Excerpt:
registration act (xvi of 1908), sections 32, 87 - presentation of document for registration by ammukhtar, validity of--registration, defect in, effect of--stamp duty--hundi written on more stamp papers than one, validity of--negotiable instruments act (xxvi of 1881), section 5--bill of exchange, whether includes hundi--contract act (ix of 1872), section 60--appropriation of payment towards interest. - .....son jogesh nath bhattacharjya rs. 70,362-8-0, being the amount due for principal and interest on a bill of exchange for rs. 50,000 and to enforce that claim as a charge upon the property mentioned in a letter of hypothecation which was said to have accompanied the bill. the bill of exchange was dated 2nd august 1908, and was drawn by jogesh nath on his father who, according to the plaintiff's case, accepted it. jogesh drew the bill at dacca. it was taken to elenga by two of the plaintiff's men, and is said to have been there accepted by biswanath on 4th august 1908, when he also signed the letter of hypothecation accompanying the bill. plaintiff's case is that two payments were made for interest by jogesh: one of rs. 3,000 on 7th november 1910 and the other of rs. 1,000 on 27th october.....
Judgment:

Charles Chitty, J.

1. This suit was instituted by Govinda Chandra Das for himself and as executor to the estate of Hari Mohan Roy to recover from Biswanath Bhattacharjya and his son Jogesh Nath Bhattacharjya Rs. 70,362-8-0, being the amount due for principal and interest on a Bill of Exchange for Rs. 50,000 and to enforce that claim as a charge upon the property mentioned in a letter of hypothecation which was said to have accompanied the bill. The Bill of Exchange was dated 2nd August 1908, and was drawn by Jogesh Nath on his father who, according to the plaintiff's case, accepted it. Jogesh drew the bill at Dacca. It was taken to Elenga by two of the plaintiff's men, and is said to have been there accepted by Biswanath on 4th August 1908, when he also signed the letter of hypothecation accompanying the bill. Plaintiff's case is that two payments were made for interest by Jogesh: one of Rs. 3,000 on 7th November 1910 and the other of Rs. 1,000 on 27th October 1911. It is conceded that these payments were made by Jogesh by cheque. The suit was filed on 2nd January 1914 and if the interest was so paid, would be within time.

2. Biswanath died on 11th Chait 1320 (=25th March 1914). A written statement, purporting but not proved to have been signed by him the day before he died, was filed by his four sons the present appellants, in the July following. They had then been substituted as his representatives and they put in a further written statement on their own behalf in almost precisely the same terms. Jogesh in his personal capacity filed a written statement but did not defend the suit, nor did he take any part in the defence put forward by his three brothers, although he was then also on the record as one of his father's representatives; nor did he venture into the witness-box to give evidence. A number of issues were raised, the contesting defendants taking every imaginable defence. The learned Subordinate Judge decided against them on all points and the four sons joined in filing the present appeal.

3. Before us four questions have been raised.--(1) Did Biswanath accept the Bill of Exchange and sign the letter of hypothecation as alleged? (2) whether the Bill of Exchange was duly stamped; (3) whether the letter of hypothecation was properly stamped and registered; and (4) whether the claim is barred by limitation.

4. The first question is one entirely of fact. It is conceded that Jogesh drew the Bill of Exchange at Dacca on 2nd August 1903. The defendants' case is that it was never taken to their father Biswanath at Elenga for acceptance, or for signature of the letter of hypothecation; and that the signatures purporting to be his on both documents are forgeries. It is not suggested who did forge or could have forged these signatures. So far as direct evidence goes of Biswanath's execution, the case rests on the evidence of the plaintiff's witnesses Haralal Chakravarty and Gouranga Chandra Das, who are said to have gone to procure the execution of the letter of hypothecation and acceptance of the Bill of Exchange by Biswanath, against the evidence of Biswanath's son Tarak Nath who tries to make out that his father was then seriously ill and who swears of his personal knowledge that Biswanath could not have executed those documents on the date alleged. I do not propose to discuss the evidence on this question at any great length because I entirely agree with the conclusion to which the learned Subordinate Judge has come, that Biswanath did accept the Bill of Exchange and sign the letter of hypothecation as alleged by the plaintiff. There seems no reason whatever to disbelieve the evidence of the plaintiff's witnesses on this point, and we have the further evidence of the plaintiff himself that he sent these two men to Elenga for this very purpose. That there was a sum of money due to the plaintiff from Biswanath and Jogesh at the time is proved beyond the shadow of doubt. There had been a number of Hundis drawn by Jogesh for his father and two small ones drawn by Jogesh and Troilokhya Nath, a Naib of Biswanath, the amounts of which were admittedly outstanding in August 1908, Those Hundis were of different dates, from 29th March 1906 down to 28th July 1908. There is correspondence on the record which shows that there was an idea of having the sums due on these Hundis consolidated and one document being given for the whole amount. It appears that Biswanath with his son Jogesh was carrying on business of various descriptions; among others, he was taking leases of forests for which he required large advances from time to time. It is admitted that the first two of the Hundis for Rs. 10,000 each were given to the plaintiff to secure Rs. 20,000 which was kept in deposit with the plaintiff for the purpose of paying a quarter of the price for the timber Mahal. That Biswanath accepted this Bill of Exchange is also supported by the letter which he wrote to the plaintiff, dated 15th Kartik 1316 (=1st November 1909), in which he promised to pay the interest as soon as possible. It is clear that this letter can only refer to interest on the Bill of Exchange. At that time there was no other debt outstanding against Biswanath to which he could be alluding.

5. The evidence on the defendants' side on this question of fact is of a purely negative character. They try to make out that Biswanath was seriously ill for some 8 or 10 days both before and after 4th August 1908. The learned Subordinate Judge has characterised Taraknath as an 'arch liar,' and I entirely agree with him that his evidence cannot possibly be believed. The whole story of this alleged illness of Biswanath is clearly an afterthought manufactured to meet the present claim. The most important witness who would be able to prove this serious illness was a Doctor named Rebati Mohan Dutt, who was said to have been summoned from Calcutta on 31st July 1908 and who is said to have stayed at Elenga treating Biswanath for eight days on a fee of Rs. 100 a day. This man has not been called. An application was made to examine him on commission, but it was plain that he was then in the neighbourhood and apparently carrying on his profession. Then it was said that he was seriously ill. The Judge properly refused to believe this and ordered him to be summoned to give evidence in Court. This ordeal he declined to face; and, as the learned Judge remarks, he thereupon made himself scarce and it is not known where he has gone.' There is no evidence on the record worth the name that he treated Biswanath at all. The prescriptions which he is said to have given are produced by another medical practitioner, Rajani Nath Sen. The proof of payment of the Rs. 800, which would have been a point very much in favour of the defendants' case, was not in the first instance attempted. Subsequently a man Jagabandhu Talukdar, a servant of the defendants, who had already been examined, was recalled to say that he had handed over the money to and taken a receipt from Rebati Mohan Dutt. There is nothing to show that the receipt is in Rebati's handwriting or that he was ever paid this very large sum of Rs. 800 by Biswanath or any member of his family. It does not appear in the family accounts. There is, moreover, as the learned Subordinate Judge has pointed out, irrefragable evidence in contemporary documents showing that Biswanath could not possibly have been ill at that time. On 1st August 1908, an application was presented to the Civil Court for the examination of Biswanath and his son Sarada Nath on commission. In that application it was distinctly stated that Biswanath was unable to come to Court on account of old age and Sarada Nath on account of ill health. The Vakalatnama on the strength of which that application was presented was signed by Biswanath personally just before the application was made. It is inconceivable that, if Biswanath was then believed to be on his death-bed, an application to examine him on commission would have been made at all or that, if it were made, it would not have been made on the ground that he was too ill as well as too old to attend the Court.

6. On the whole evidence, I think that there can be no possible doubt that Biswanath accepted this Bill of Exchange and executed the letter of hypothecation, as the plaintiff alleges, on 4th August 1908.

7. The next point is whether the Bill of Exchange was duly stamped. The argument of the learned Counsel for the appellant, as I understood it, was that Nilkanta Shaha, the stamp-vendor, was not a licensed stamp-vendor in 1908 who was authorized to grant a certificate for the use of three pieces of stamped paper to make up the stamp of Rs. 30, and that it was not open to the executant of the Bill of Exchange to use three pieces of stamped paper to make up the stamp on that document. With regard to Nilkanta Shaha, before the appeal 'came on for hearing, it was represented to us that the defendants had in the Court below made a case of forgery having been committed in the registers of the Collector relating to stamp vendors and we were asked to send for these books for the purpose of judging whether fresh evidence should be taken on this point. It should be noted that the learned Subordinate Judge had himself called for these registers, had inspected them in the presence of the Pleaders of both parties and had come to the conclusion that there was no ground for suspicion. Two of the registers--parts of register No. 72--were actually marked as exhibits in the Court below. The other, said to be a list of stamp vendors, was not marked as an exhibit, as it appeared unnecessary. On the documents being produced before us it was at once apparent that there was no ground whatever for any suggestion of the registers having been tamped with. The only alteration in the register No. 72 was an alteration in the figures of the years, printed forms for previous years having been bound up and used for subsequent years, the figures of those years being entered in manuscript. As to the list, it is at most of a negative value. It may be conceded that the name of Nilkanta Shaha does not appear in that list, and no suggestion of forgery is made in connection with it. The man's name, however, does appear in the register of stamp-vendors of that year. It may be that he was licensed to sell Court-fees at the several Courts. The question is of no importance because the argument of the learned Counsel appears to be based on an erroneous reading of the rules of the Governor-General in Council then in force relating to the manner in which stamps should be affixed to various instruments. The learned Counsel relied on certain rules which relate to Hundis. Rule 4 relating to Bills of Exchange is different, and under that rule the document is correctly stamped, A Bill of Exchange may include a Hundi; but it does not follow that a Hundi includes a Bill of Exchange. Though this document has been loosely described in the lower Court and by the parties as a Hundi, it is, in fact, a Bill of Exchange; it was intended to be a Bill of Exchange; and the rules relating to stamping of Bills of Exchange would apply to it. Rule No. 6 especially authorizes the joining of two or more sheets of stamped papers together, subject only to the proviso that a portion of the instrument shall be written on each sheet so used. That is admittedly the case here, the document being written across all three. There is no question that the document was written on three 'Hundi' stamp papers of the aggregate value of Rs. 30. It was, therefore, correctly stamped.

8. We then come to the question of the admissibility in evidence of the letter of hypothecation. As to this it is contended that as the document was not properly stamped, it was not capable of registration, and that having been improperly registered it was invalid to create any charge. It was further urged that it was not presented for registration by a person authorized to do so. As to the registration it is clear upon the evidence that the document, when presented to the Registrar, was examined by him and he came to the conclusion, rightly or wrongly, that, being a letter of hypothecation accompanying a Bill of Exchange, it was exempt from duty under Article 40, Exemption (2) of Schedule I of the Stamp Act, II of 1899. He accordingly certified on the Bill of Exchange that it was properly stamped and registered the letter of hypothecation without requiring any further duty to be paid in respect of it. In this connection the learned Counsel for the appellant relied upon Section 35, which provides that 'No instrument chargeable with duty shall be admitted in evidence for any purpose by any persons having by law or consent of parties authority to receive evidence; or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped.' It was urged that this prohibition of registration of an instrument not duly stamped implied that such an instrument, if improperly registered, would be invalid in law. He was confronted with proviso (a) to that section and he was forced to contend that that proviso did not refer to documents compulsorily registrable. This shows the fallacy of the argument, for there is nothing in that proviso so to restrict its scope. It is obvious that this document might have been admitted in evidence in the Court below, had the Judge so thought fit, on payment of the stamp duty payable and the penalty prescribed by Section 35. It cannot be said that the document was incapable of registration inasmuch as it was registered. An improper registration by the Registrar could not possibly affect the validity of the document. Section 87 of the Registration Act says that 'Nothing done in good faith pursuant to this Act...by any registering officer shall be deemed invalid merely by reason of any defect in his...procedure.'

9. Nor can it be successfully argued that this document was presented for registration by an unauthorized person. It was presented for registration by Jogesh Nath Bhattacharjya, who along with his brothers held an am-mukhtearnama (Exhibit 1) from his father Biswanath, dated 4th Chait 1310. By this document Biswanath empowered any of the said am mukhtears to do all acts relating to his estate in various Courts and offices, among others 'in the District Registration Office and Sub-Registration Office, etc, subordinate thereto.' This general power would clearly authorise any of the am-mukhtears to present and procure the registration of any document relating to his estate. That power is in no way curtailed by the special power which follows, that any of his mukhtears might borrow money by executing on his behalf by signing his name bakalam hand-notes, Hundis, promissory notes, or hypothecation bonds, with Hundis, bonds or any other document, and present those documents in any Registration Office according to necessity and get them registered. I am of opinion, therefore, that Jogesh was fully authorized to present and get registered this letter of hypothecation.

10. It may be an arguable point whether the course taken by Biswanath and his sons, which was accepted by the Sub-Registrar and later by the learned Subordinate Judge, was correct according to law. It can hardly have been intended by the Legislature that a debtor in the Muffussil desiring to mortgage his property should, by executing a Bill of Exchange and giving a mortgage in the shape of a letter of hypothecation accompanying such bill, be able to evade the stamp laws and effect a mortgage for the duty chargeable only on a Bill of Exchange, But, in my opinion, we are precluded from going into the propriety of that proceeding by the provisions of Section 38 of the Stamp Act. The Registrar may have been wrong in thinking that the letter of hypothecation was exempt from stamp duty and registering it as such. The learned Subordinate Judge may also have been in error in admitting it in evidence on the same ground. But as he admitted the document in evidence, that admission, except as is provided for by Section 61, which does not affect the liability of the defendant, cannot be called in question in this suit. The question of the validity of a registration, where there has been some error on the part of the Registrar, was many years ago considered by the Judicial Committee of the Privy Council, who held that in spite of such error the registration would nevertheless be good. See Sah Mukhun all Panday v. Sah Koondan Lall 15 B.L.R. 228 ; 24 W.R. 75 ; 2 I.A. 210 ; 3 Sar. P.C.J. 509 (P.C.) and Muhammad Ewaz v. Birj Lal 1 A. 465 (P.C.) ; 4 I.A. 166 ; 3 Sar. P.C.J. 735 ; 3 Suth. P.C.J. 438 ; 1 Ind. Dec. (N.S.) 820. It follows that the validity of the document registered would not be thereby affected. It would be most dangerous if such were the law; nor does it lie in the mouth of the representatives of the executant of this letter of hypothecation, who was responsible for the proper stamping of that document, now to plead that his contract was not binding upon him because he had succeeded in defrauding the revenue.

11. The last question is that of limitation. There is no evidence on the part of the appellants-defendants of any appropriation by Jogesh of these sums of Rs. 3,000 and Rs. 1,000. They were undoubtedly paid by Jogesh by cheque against this Bill of Exchange. The creditor was justified in appropriating them towards the sum then due for interest, which largely exceeded these amounts. That he did so appropriate them is clear from his notice (Exhibit 10-P) dated 19th Chait 1319 (=lst April 1913), where the two sums are duly credited against the interest which he was then demanding in respect of this bill. The result, in my opinion, is that the decision of the learned Subordinate Judge was correct, and that this appeal must be dismissed with costs.

Panton, J.

12. I agree.


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