Dave, J.:— This is an application in revisions by the defendant against the order of the District Judge, Pratapgarh, dated the 7th of December 1953 permitting the plaintiffs' unstamped document to be admitted in evidence on payment of penalty.

2. In order to appreciate the point in issue, it would be proper to narrate the facts in brief. The plaintiffs Tarachand and others brought a money suit against the defendant-petitioner on the basis of certain entries in their account-books. It was averred by them that on Kati Sud 1 Samwat 2008 corresponding to 31st of October 1951. She defendant settled with the plaintiffs his account whereby a balance of Rs. 1734/12/- was found outstanding against him. The defendant, therefore, executed a Khata in their account-books for the said amount and promised to pay interest on the said amount at Re. 1 per cent per mensem.

3. Thereafter, on Magh Vad 6 Samwat 2008 corresponding to 20th of November 1951, the defendant obtained a further loan of Rs. 8001/- at the same rate of Interest and made an entry to that effect in the same Khata in his own hand. It was prayed that the defendant having failed to pay up the said loan, a decree for Rs. 11,045/6 with interest pendente lite and costs be given against him.

4. The defendant traversed the claim and raised, several objections, one of them being that both the entries on which the suit was founded showed that they were unstamped acknowledgments, and therefore, they could not be admitted in evidence.

5. The trial court has found that since there was a promise to pay interest, the entries come within, the ambit of agreement and that they are admissible in evidence on payment of stamp duty, as provided in Sch. I Article 5 of the Stamp Act together with the penalty, as provided in Section 35 of the same Act. It is against this order that the defendant has come here in revision.

6. Before entering into the arguments advanced by both the parties before us, it would be proper to reproduce here the contents of the document on which the suit is based. It is as follows:—

7. Nakal Khata Pana 1 ki.

8. Shri Khato 1 Manakshah Dhanjishah Thekadar Nimbahera ware ko vyas Pra 1 anke ek susnar 2008 Kartak Sudi 1 Das: Manakshah.

1734/12/- Shri Baki Dena Rs. 1734/12/- Samvat 2008 Kartak Sudi 1 Juni Hath Bahi Pane 7 se. Da: Manakshah Dhanjishah. 8001/-/- Shri Miti Magsar Vad 6 Ta: 20-11-51 nagad rokadi Ru. 8001 anke Ath hajar ek Moter kharidwa saru liya Da: Manakshah Dhanjishah.”

9. Translated into English, it would read thus:—

10. Copy of Khata leaf No. 1.

11. Shri Khata of Manakshah Dhanjishah Thekadar of Nimbahera interest at 1 per cent Samwat 2005 Kartik Sud 1 SD/- Manakshah.

1734/12/- payable Rs. 1734/12/- Samwat 2008 Kartik Sud 1 from old account-book (juni hath bahi) leaf No. 7 SD/- Manakshah Dhanji Shah. 8001/-/- Miti Magsar Vad 6 dated 20-11-51 took Rs. 8001/- cash in words Eight thousand and one for purchasing motor: SD/- Manakshah Dhanjishah.

12. Learned counsel for the petitioner has urged that both the entries of Rs. 1734/12/- and Rs. 8001/- are mere acknowledgments of a debt written in order to supply evidence thereof and, therefore, they were chargeable with stamp of one anna according to Sch. 1 Article 1 of the Stamp Act.

13. It is admitted by learned counsel that the entire Khata from beginning to end is in the handwriting of his client, that the entry at the top and the entries about the two items of Rs. 1734/12/- and Rs. 8001/- also bear his client's signature. It is however urged that the rate of interest indicated: in the entry on the top does not amount to “a stipulation to pay interest” and therefore, this is-not covered by the proviso to Article 1.

14. According to learned counsel, these acknowledgments could come within the ambit of the term “agreement” only if there were an express promise to pay interest. He means to say that a mere mention of the rate of interest is not an express promise or stipulation to pay interest and, therefore, the trial court's opinion holding the entries as agreement is incorrect.

15. It would be proper to reproduce here Sch. I Article 1 of the same Act because the decision of the question involved hinges upon the interpretation of its language. It runs as follows:—

“1. ACKNOWLEDGMENT of a debt exceeding twenty rupees in amount or value, written or signed by, or on behalf of, a debtor in order to supply evidence of such debt in any book (other than a banker's pass-book) or on a separate piece of paper when such book or paper is left in the creditor's possession: provided that such acknowledgment does not contain any promise to pay the debt or any stipulation to pay interest or to deliver any goods or other property — One anna.”

16. It is clear from the language of the said Article that if a document is a mere acknowledgment of a debt exceeding Rs. 20/- in amount or value and if it is written or signed by or on behalf of a debtor in order to supply evidence of such debt, then it must bear a stamp of one anna. It is also clear from the provision of S. 35 that such a document, if not stamped, cannot be admitted in evidence.

17. The trial court has held it admissible because, in its opinion, the document is covered by the proviso of the said Article which says that if an acknowledgment contains any promise to pay a debt, or any stipulation to pay interest or to deliver any goods or any property, then it would not be covered by this Article. It is not disputed by learned counsel for the petitioner that if this Court comes to the conclusion that the document contains a stipulation to pay interest, then the trial court's order would be correct.

18. He, however, contends that every unconditional acknowledgment to pay a debt implies a promise to pay and still it cannot be an agreement unless the promise to pay a debt is expressly mentioned in the document. On the same analogy, he has proceeded to argue that a mere mention of the rate of interest in the document is not enough and unless there is an express promise to pay the interest it should not be taken to be a stipulation envisaged in the proviso referred above.

19. In support of his argument, learned counsel has referred to Hiralal Sircar v. Queen Empress, ILR 22 Cal 757 (A). The entry of the document in that case was as follows:—

One anna Stamp.

Sri Nimai Chandra Biswas of Puranagram Rs. Seventy only.

“Account of Sri Nimai Chandra Biswas of Puraliagram.

Payments:Amounts due:—

Advance, 19th Assin 1301, through self in cash Rs. 75/-. Rupees seventy-five is taken by me as loan. I shall pay interest on it at the rate of Re. 1-0 one per cent per mensem.

Witnesses: —

Sri Hem Chandra Mukliopadhya of Bajitpur (writer), Sri Kisori Mohan Ghose of Harisara.”

20. It was held that the said entry was only an acknowledgment and not a bond. It may be pointed out that in that case the money-lenders were convicted by the District Magistrate under Section 61 of the Stamp Act and S. 109 of the I.P.C and the matter had gone to the High Court of Calcutta in revision. The only point to which the learned Judges directed their attention was whether the document was an acknowledgment or a bond.

21. There is no discussion in the whole case on the point whether the document could or could not be called an agreement. It appears that this point was not raised by anybody. If the learned Judges had held that the entry was not an agreement, then with due respect, we would have expressed our disagreement with them.

22. It may be pointed out that in the said entry, there was not only an implied but even an express promise to pay interest in clear terms. This case does not support the argument of the learned counsel because he himself has conceded that if there is an express promise to pay interest, it would be an agreement.

23. It is, therefore, clear that the only point which the learned Judges considered in this case was whether the document was a bond. They found that the document itself did not create an obligation to pay the money and therefore, they set aside the conviction of the accused.

24. It may be further pointed out that this case was cited in Mahadeo Kori…(Defendant); v. Sheoraj Ram Teli…(Plaintiff).*, ILR 41 All 169 : (AIR 1919 All 196) (B) but the learned Judges did not even express any opinion about it. In our opinion, it is of little assistance in deciding the point which has been raised before us because, as mentioned above, the learned Judges did not take the proviso into consideration at all.

25. Learned counsel has next referred to Firm Shiv Ram Punnun Ram v. Paiz, AIR 1942 Lah 50 (FB) (C). In that case, the main question before the learned Judges was whether the words ‘baki rahe lene lekha karke” amounted to a mere acknowledgment or could be said to amount to agreement within Article 5 of the Stamp Act. It was held that they were mere acknowledgments. In that case, there was no mention about rate of interest and the decision is, therefore, not helpful.

26. Learned counsel has only tried to draw an inference in fils favour from the language employed by one of the learned Judges in one of the passages, but, in our opinion, if is not proper to deduce a conclusion of the learned Judges on a point which they were not considering.

27. It would be enough to say that learned Judges had referred to a number of previous decisions of their own High Court and overruled certain cases, for example, Firm Tek Chand Daulat Ram v. Ata Mohammad, AIR 1938 Lah 503 (D) and Firm Duli Chand Maidhan v. Panthi, AIR 1938 Lah 511 (E), but they did not touch their Full Bench decision of the same year in the case of Shanti Parkash v. Hamam Das, AIR 1938 Lah 234 (F).

28. In that case, it was observed.

“that whenever a balance is struck and over and above that interest is fixed or there is a promise to pay interest then there is a promise to pay within the meaning of Section 25(3) of the Contract Act.”

29. It is very clear from the said observation that in the opinion of the learned Judge, one of whom was party in Firm Shiv Ram Punnun Ram v. Paiz (C) also, even the mention of interest over and above the balance struck was sufficient to bring the acknowledgment within the meaning of agreement.

30. On the other hand, we may refer to a number of cases in which it has been held that a mention about the rate of interest in an acknowledgment brings it within the proviso of Article 1 and further takes it into the ambit of Article 5 of the Stamp Act. In Prahlad Prasad v. Bhagwan Das, AIR 1927 All 677 (G), the plaintiff had sent to the defendant a statement of account. The defendant endorsed the acknowledgment and added “interest at annas 12/- per cent per mensem.”

31. It was observed following earlier decisions of the same High Court that

“In our view it is impossible to hold that the stipulation as to interest can be interpreted otherwise than as a promise to pay interest in the future at the named rate whether the promise was in express words such as “I promise to pay” or a matter of necessary implication is immaterial.”

32. Again in the case of Ram Prasad v. Sheo Baksh Goshain, AIR 1933 All 179 (H), there was a Sarkhat purporting to bear interest at 10 annas per cent per mepsem. It was held that the courts below were right in treating the document as an agreement.

33. Learned counsel for the applicant Mas drawn our attention to another Full Bench case of the Allahabad High Court in Ram Prasad Ram Kumar…Applicant; v. Parshottam Halwai…Opposite Party., AIR 1933 All 256 (I).

34. In that case, there was an acknowledgment of debt and above that acknowledgment, there was an entry in that book to pay interest. It was held that it was a mere acknowledgment of debt and stamp duty was to be paid only as such. It may be pointed out that this case does not help the petitioner because the learned Judges were of opinion that the entry containing the rate of interest written above the acknowledgment was not in the handwriting of the debtor nor was it signed by him and, therefore, they were of opinion that it was possible that the creditor himself might have written it out and the debtor may have had no information at all if there was a stipulation for payment of interest.

35. It is obvious that the learned Judges did not consider the condition about payment of interest as integral part of the document sued upon and it was for that reason that they held it to be an acknowledgment. This does not mean that the learned Judges would still have held it to be an acknowledgment if the condition about the payment of interest were included in the acknowledgment itself.

36. We may point out that in a subsequent case Sukhdeo Prasad, In re, AIR 1934 All 1052 (J), the learned Judges of the Allahabad High Court again followed their earlier decisions in AIR 1919 All 196 : ILR 41 All 169 (B) and Prahlad Prasad v. Bhagwan Das, (G) referred above. In that case, the debtor had borrowed certain sum of money at certain rate of interest and in the concluding sentence, he had written “hence this receipt has been executed.”

37. It was held that in view of the stipulation regarding interest, the document could not be considered to be a mere acknowledgment, but they were memoranda of agreement. The Oudh Chief Court has also taken the same view in the case of Ballabh Das v. Puran, AIR 1930 Oudh 194 (K).

38. Thus there is an overwhelming authority in favour of the view that if the rate of interest is mentioned in an acknowledgment, it comes within the ambit of the term “agreement” and the proper stamp chargeable would be under Article 5 of the Stamp Act. As mentioned above, learned counsel had tried to apply the analogy about “the promise to pay the debt” in the case of “stipulation to pay interest”. It may be observed that an unconditional acknowledgment itself implies a promise to pay and, therefore, since promise to pay the debt was further mentioned in Article 1 of the same Act, the courts have taken the view that “the promise to pay the debt” must be express, otherwise it would remain only an acknowledgment.

39. This analogy cannot be imported in the case of interest because an acknowledgment does not imply any stipulation to pay interest. Therefore, wherever interest is mentioned in an acknowledgment, the debtor has no other purpose to mention it there except to make a promise to pay the interest at the rate mentioned therein.

40. Therefore, wherever interest is mentioned in an acknowledgment, it is a stipulation to pay the same and it is covered by the proviso embodied in Article 1.

41. It has been conceded by the applicant's learned counsel that the entry about the payment of interest and the acknowledgment regarding Rs. 1734/12 was written and signed by the petitioner on the same date. Therefore, it is obvious that the petitioner did mean to pay interest on the first item. The second item of Rs. 8001/- was entered some time after on 20th of November 1951 when that amount was borrowed. The question arose whether the note about the payment of interest in the Khata referred at the top was to be applicable to all the subsequent entries or only to the first entry.

42. We are of opinion that the manner in which the petitioner had written the Khata shows that he meant to pay interest on all the amounts which were to be entered in the Khata subsequently, otherwise he would have written it only with regard to the first entry and there was no necessity of giving a note over and above the entries at the top in the Khata. It appears that the petitioner had done so in order to avoid repetition in mentioning the rate of interest on every item. The trial court was correct in saying that this condition of interest governed all the subsequent transactions. The second entry, therefore, also amounts to an agreement and the trial court was quite correct in saying that the document would be admissible on payment of penalty. We see no reason to interfere with the trial court's decision which is correct. The application is therefore dismissed with costs.

G.M.J

43. Application dismissed.