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R.B Suraj Bhan v. Dr. Dewan Singh

Delhi High Court
May 8, 1974
Smart Summary (Beta)

Structured Summary of the Opinion (Prakash Narain, J.)

Factual and Procedural Background

The respondent/plaintiff sued the appellant/defendant under Order 37 of the Code of Civil Procedure on the basis of a promissory note (Exhibit P.2) for Rs. 50,000 bearing interest at 6% per annum, allegedly executed by the appellant on 25 May 1961. The respondent asserted that Rs. 50,000 had been paid to the appellant by cheque (Exhibit P.1/1) and that the appellant executed a receipt (Exhibit P.3). The appellant was granted leave to appear and defend conditional on furnishing security, which was furnished.

The appellant's original defences included (a) that he had not received the Rs. 50,000 so that the promissory note lacked consideration, and (b) that the promissory note was connected to separate agreements relating to sale and resale of certain properties (including arrangements as to additional interest and a right of repurchase). After the parties had led evidence, the appellant amended his written statement to add a plea that the promissory note was inadmissible because four revenue stamps affixed to it had not been properly cancelled. The amendment was allowed.

The trial court framed issues, decided them against the defendant, and decreed recovery of Rs. 50,000 as principal and Rs. 3,000 as interest with costs. The appellant appealed. The respondent was served but did not appear in the High Court; an actual date notice was sent, and he remained unrepresented.

Legal Issues Presented

  1. Whether the promissory note (pronote) is without consideration as alleged in the defendant's additional pleas.
  2. Whether the promissory note in question was not properly cancelled; if so, what is the effect (Issue 1A).
  3. What is the effect of the pronote having been admitted in evidence (Issue 1B).
  4. What amount, if any, is due to the plaintiff on account of (a) principal and (b) interest (Issue 2).
  5. Relief (Issue 3).
  6. On appeal, the principal point urged: whether the revenue stamps affixed to the pronote had been cancelled as required by Section 12 of the Indian Stamp Act such that the document was admissible in evidence.

Arguments of the Parties

Appellant's Arguments

  • The promissory note was without consideration because the appellant had not received the Rs. 50,000 alleged to have been paid.
  • The promissory note was executed in connection with agreements relating to sale/resale of properties (including arrangements for additional interest) and thus had a commercial context other than a simple loan note.
  • As amended after evidence, the appellant contended the promissory note was inadmissible because the four revenue stamps affixed to it were not properly cancelled in accordance with Section 12 of the Stamp Act; therefore the document was to be treated as unstamped and inadmissible, and the suit based on it should be dismissed.

Respondent's Arguments

  • The respondent denied any connection between the promissory note and the agreement to sell pleaded by the appellant and reiterated that the promissory note was supported by consideration (i.e., the Rs. 50,000 payment).
  • The respondent did not file representation or appear in this Court (no further arguments in the High Court were advanced on record).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Sohan Lal Nihal Chand v. Raghu Nath Singh and others, A.I.R 1934 Lahore 606 Held that if one of multiple adhesive stamps on a pronote is not cancelled and can be removed and used again, the document is insufficiently stamped and inadmissible; no decree can be passed on such a pronote even if the defendant admits liability. The court invoked the case to support the proposition that stamps must be examined to see if they can be reused; it reinforced the conclusion that improperly cancelled stamps render the document unstamped and inadmissible.
Khazan Shah v. Atta Ullah, A.I.R 1933 Lahore 148 Affirmed the same rule as in Sohan Lal Nihal Chand regarding insufficient cancellation making a document unstamped. Used to reinforce the established principle that incomplete cancellation results in a document being treated as unstamped.
Hafiz Allah Baksh v. Dost Mohammad, A.I.R 1935 Lahore 716 Considered whether a line drawn across a stamp constituted sufficient cancellation; held that if a stamp can be used again after being lifted, the cancellation is not proper. The court relied on this authority (and its reasoning) in concluding that a faint line or partial mark that leaves space to reuse the stamp is insufficient cancellation.
Dhirajlal Mohanlal Kathewadi v. Ranchhod Balaram Nayak, 1973 Bombay Law Reporter 189 Reiterated the Lahore High Court's view that partial or ineffective markings do not amount to proper cancellation if the stamp can still be reused. The court cited this case as a recent reiteration of the same principle, supporting the conclusion that the fourth stamp and possibly the first three were not effectively cancelled.
Sait Tarajee Khimchand and others v. Yalamarti Satyam and others, A.I.R 1971 Supreme Court 1865 Held that mere marking of an exhibit does not dispense with the requirement of proof of documents; marking alone does not amount to admission within the meaning of the Stamp Act. The court applied this principle to state that marking the pronote as Exhibit P.2 did not amount to its admission in evidence under Section 36 of the Stamp Act, and the court must refuse to admit an improperly stamped document.

Court's Reasoning and Analysis

The High Court first set out the statutory text of Section 12 of the Stamp Act (including subsection (2) and subsection (3)) and explained that the statute does not prescribe a singular manner of cancellation but requires the stamp to be cancelled so that it cannot be used again.

The court examined the original pronote (Exhibit P.2) and described the physical condition of the four revenue stamps (each of 10 Naya Paise). The first three stamps bore the appellant's signatures; the fourth had a faint ink line halfway across with a downward hook in deeper ink. The trial court had found this sufficient under Section 12, but the High Court disagreed.

Applying the principles from the precedents, the court asked whether any of the stamps could be lifted from the document and reused. It found that:

  • The fourth stamp had sufficient blank space at the top, bottom and right so that it could be removed and affixed to another document; it was not overlapping the third stamp nor undetached by perforation. Thus, the fourth stamp was not cancelled in a manner preventing reuse.
  • The first three stamps, despite bearing signatures, were not conclusively cancelled because the signatures appeared entirely upon the stamps and could, in the court's view, be lifted and affixed to another document to give the appearance of cancellation; the court explained the proper mode of cancellation should commence on the paper, traverse the stamp, and continue onto the paper on the other side, or by some other effectual mode running right across the stamps.

On that basis the court held that the stamps on the pronote were not cancelled in accordance with the requirements of law and therefore, by operation of Section 12(2) of the Stamp Act, the document must be treated as unstamped.

The court then considered whether marking the document as Exhibit P.2 and the fact that the execution was not denied could cure the defect by treating the document as admitted into evidence under Section 36 of the Stamp Act. Relying on Sait Tarajee (A.I.R. 1971 SC 1865), the court held that mere marking of the exhibit does not dispense with the requirement of proof and does not constitute admission within Section 36. The court also observed that no witness deposed that the pronote had been signed by the appellant, and in any event an improperly stamped document cannot be put to a witness in evidence as Section 12(2) applies.

Given this conclusion on stamping and admissibility, the court found it unnecessary to elaborate on the other issues decided by the trial court.

Holding and Implications

Holding: The appeal was allowed. The High Court set aside the judgment and decree of the trial court and dismissed the respondent's suit with costs of the trial court. Because the respondent did not appear in this Court, there was no order as to costs in the appeal.

Implications: The direct effect of the decision is that the plaintiff's suit founded on the pronote (Exhibit P.2) fails because the revenue stamps affixed to the pronote were not cancelled in the required manner and therefore the pronote must be treated as unstamped and inadmissible. The court did not address or establish broader novel principles beyond applying existing authorities on effective cancellation and on the proposition that mere marking of an exhibit does not dispense with proof; no wider or new precedent was announced in this opinion beyond the application of those existing principles to the facts of the case.

This summary is confined strictly to information contained in the provided opinion. No additional facts or inferences have been introduced.

Show all summary ...

Prakash Narain, J.:— This first appeal is directed against the judgment and decree dated September 30, 1963 of the Commercial Sub Judge 1st Class, Delhi, whereby the suit of the respondent/plaintiff for recovery of Rs. 53,000/- with costs was decreed against the appellant/defendant.

The suit was filed by the respondent under Order 37 of the Code of Civil Procedure on the basis of a promissory note (Exhibit P. 2) for a sum of Rs. 50,000/- carrying interest at 6 per cent per annum payable to the respondent on demand, executed by the appellant on May 25, 1961. The amount of Rs. 50,000/- is said to have been paid to the appellant by the respondent by means of a cheque for Rs. 50,000/- (Exhibit P. 1/1). In token of receipt of the said amount the appellant is stated to have executed a receipt (Exhibit P. 3). The appellant applied for and was granted leave to appear and defend the suit conditional on furnishing security. This has been done. The pleas taken up by the appellant in defence of the suit originally were that he had not received any payment of Rs. 50,000/- and so, the promissory note in question was without consideration; that actually this promissory note was executed to secure additional interest to be paid by the appellant to the respondent in connection with an agreement to sell entered into between the parties in respect of certain properties owned by the appellant which had been attached and sold in a court auction after dismissal of the appellant's objections under order 21 rule 90 C.P.C from which order an appeal was then pending in the High Court. The agreement to sell, broadly speaking, was that in case the High Court set aside the auction sale the respondent would purchase two properties of the appellant for a sum of Rs. 3,90,000/-. Another agreement between the parties to the effect that the appellant would be entitled to repurchase the properties sold to the respondent within two years and in that contingency would have to pay to the respondent interest at the rate of Rs. 1.12 per month on the amount of Rs. 3,90,000/- was also pleaded. In this agreement of resale interest payable was to be mentioned as 10 annas per cent per month and so, for the balance interest of 8 annas per cent per month this promissory note was obtained as security. Later on the written statement was amended and a plea was taken that the promissory note which was the basis of the suit was not admissible in evidence nor could it be admitted into evidence as there was no proper cancellation of the four revenue stamps affixed on the said promissory note. The amended written statement was filed after the parties had led evidence. This amendment was allowed.
The respondent in his replication denied that the promissory note had any connection with the agreement to sell pleaded by the appellant and reiterated his case about the said promissory note being for consideration.
On the pleadings of the parties the trial court settled the following issues: —
1. Whether the suit pronote is without consideration as alleged in the additional pleas?
1A. Whether the pronote in question is not properly cancelled ? If so, with what effect?
1B. What is the effect of the pronote having been admitted in evidence?
2. What amount, if any, is due to the plaintiff on account of (a) principal and (b) on account of interest, if any?
3. Relief.
The trial court decided all the issues against the defendant and, as already noticed earlier, decreed the suit for the recovery of Rs. 50,000/- as principal and Rs. 3000/- as interest with costs. Hence this appeal.
The respondent, though served, did not file representation. Accordingly, an actual date notice was also sent to him under the rules of this court. He has, however, not put in appearance.
The first point that was urged on behalf of the appellant is that the stamps on the promissory note, Exhibit P.2, have not been cancelled as required by the provisions of the stamp act and so, the document must be treated as unstamped. If that be so, then the document could not be taken into evidence and the suit was liable to be dismissed being a suit on an inadmissible document. This very objection had been raised in the trial court also and forms the subject matter of Issues 1A and 1B.
The trial court agreed with the proposition of law canvassed before it that all the four stamps affixed to the promissory note had to be cancelled but came to the conclusion that the cancellation was proper and fulfilled the requirements of Section 12 of the Stamp Act. Before we proceed to comment upon this finding, it would be advantageous to notice the law on the subject. The relevant provision of the stamp act in this behalf is Section 12 which is in the following terms: —
“12. (1) (a) Whoever affixes any adhesive stamp to any instrument chargeable with duty which has been executed by any person shall, when affixing such stamp, cancel the same so that it cannot be used again; and
(b) whoever executes any instrument on any paper bearing an adhesive stamp shall, at the time of execution, unless such stamp has been already cancelled in manner aforesaid, cancel the same so that it cannot be used again.
(2) Any instrument bearing an adhesive stamp which has not been cancelled so that it cannot be used again, shall, so far as such stamp is concerned, be deemed to be unstamped.
(3) The person required by sub-section (1) to cancel an adhesive stamp may cancel it by writing on or across the stamp his name or initials or the name or initials of his firm with the true date of his so writing, or in any other effectual manner.”
A reading of the section would show that there is no particular manner provided for cancellation of the stamps. What is important is that the cancellation should be in such a manner so that the stamps cannot be used again.
In Sohan Lal Nihal Chand v. Raghu Nath Singh and others, A.I.R 1934 Lahore 606, (1), the court was concerned with the question of cancellation of a pronote for Rs. 20,000/-. This pronote had four one anna adhesive stamps affixed to it. It was admitted that one of them had not been cancelled in any way and could be removed and used again. It was held that one of the stamps being un-cancelled, the document should be considered as insufficiently stamped and so, no decree could be passed on the basis of such a pronote which was inadmissible in evidence. We may mention that it was further observed by the bench in this case that no decree could be passed in a suit on the basis of such a pronote even if the defendant admitted his liability.
In Khazan Shah v. Atta Ullah, A.I.R 1933 Lahore 148, (2) also the same rule was laid down as in the case of Sohan Lal Nihal Chand.
In Hafiz Allah Baksh v. Dost Mohammad, A.I.R 1935 Lahore 716 (3) the bench considered the question of a line drawn across the same being regarded as sufficient cancellation within the meaning of Section 12 of the Stamp Act. It was held that where it is possible to use, such a stamp a second time, it could not be held that the cancellation was proper. The same view as was expressed in the case of Hafiz Allah Baksh by the bench of the Lahore High Court has recently been reiterated by the Bombay High Court in Dhirajlal Mohanlal Kathewadi v. Ranchhod Balaram Nayak, 1973 Bombay Law Reporter 189, (4).
The ratio of the judgments, therefore, is that the stamp in question should be examined to see whether it can be lifted from the document on which it is affixed and used again. Indeed, the requirement of the statute is that the cancellation should be in a manner that the stamp cannot be used again.
We have examined the original document in this suit. It bears four revenue stamps of 10 Naya Paise each. The first three stamps have at them the signatures of the appellant but the fourth stamp has a faint line in ink running almost half way across the stamp with a hook coming downward in some what deeper impression in ink. The trial court had held that this line ending in a hook was sufficient cancellation with the requirements laid down by Section 12 of the Stamp Act. We do not agree. The requirement of law is to see whether the stamp can be used again if lifted from the document. There is sufficient space both at the top, bottom and the right half side of the fourth stamp for affixation of signatures or adoption of any other mode of cancellation. This stamp is not affixed either overlapping the third stamp nor are the perforation of the third and the fourth stamps undetached. In our view, therefore, the fourth stamp cannot be regarded as having been cancelled in a manner which would prevent it from being reused.
Even the first three stamps, in our view, may not be regarded as properly cancelled because the three stamps which have the signatures of the appellant can be lifted and affixed on another document giving complete signatures. In order that the stamps can be called effectually cancelled the signatures should commence on the paper on which the stamp is affixed, go across the stamps and finish on the paper on the other side. If signatures are not affixed to cancel the stamp, some other effectual manner of cancellation be adopted running right across the stamps, the cancellation commencing on the paper on which the stamp is affixed and ending also on the paper on the other side. We, therefore, hold that the stamps on the pronote not being cancelled in accordance with the requirements of law, this document must be treated as unstamped.
The document had been marked Exhibit P. 2 and even its execution was not denied by the appellant. The question that, however, arises is that even in such circumstances could the document be regarded as having been admitted into evidence and so, its admissibility being put beyond question as contemplated by Section 36 of the Stamp Act. As already noticed the execution of the document was not in dispute. In such circumstances the marking of the document as Exhibit P. 2 cannot be regarded as the document having been admitted into evidence within the meaning of Section 36 of the Stamp Act. The mere marking of documents cannot be regarded as dispensing with proof of documents in accordance with law. Furthermore, it is the duty of the court recording evidence to see that it does not admit into evidence a document which is not properly stamped. As was held by the Supreme Court in Sait Tarajee Khimchand and others v. Yalamarti Satyam and others, A.I.R 1971 Supreme Court 1865 (5), the mere marking of an exhibit does not dispense with the proof of documents. Looking at the evidence on record we do not find anyone deposing on behalf of the respondent, that the promissory note, Exhibit P. 2, was signed by the appellant. In any case as the document is not properly stamped, it could not be allowed to be put to a witness in evidence as the provisions of sub-section (2) of Section 12 are clearly attracted. This being the situation the suit on the basis of this promissory note could not be decreed.
The view that we have taken makes it unnecessary for us to dilate on the other issues in the case.
Accordingly, we accept the appeal, set aside the judgment and decree of the trial court and dismiss the respondent's suit with costs of the trial court. As the respondent was not represented in this court there will be no order as to costs in appeal.
Appeal allowed.