Mukerji, J.:— These three rules are directed against as many orders passed by the Subordinate Judge, 1st Court, Faridpur, by which that learned Judge directed the petitioners to deposit stamp duty and penalty in respect of three documents. The petitioner's had instituted three suits for recovery of money due upon the said documents and filed the same along with the plaints. A commissioner was appointed for the examination of one of the plaintiffs and the documents were proved in the course of the deposition of that witness taken by the commissioner. Thereafter the suits were adjourned from time to time and ultimately resulted in a compromise on the basis of which decrees were passed on the 20th May, 1926. On the 3rd June, 1926, the decrees were signed and sealed on the 2nd July, 1926, the sheristadar made a report stating that the documents were not promissory notes, but bonds, within the meaning of the Stamp Act and accordingly should have been stamped as such. On the said report the Subordinate Judge passed the orders against which these Rules are directed.
The two contentions urged on behalf of the petitioners are: 1st, that the Subordinate Judge had no jurisdiction to make these orders; and 2nd, that the documents are promissory notes and not bonds within the meaning of the Stamp Act.
It will be convenient to deal with the second contention first. The documents are addressed to a particular person, namely, the plaintiff No. 1. Each of them contains an unconditional undertaking signed by the maker to pay on demand to the person in whose favour it is executed, a certain sum of money, principal together with interest. They are attested by a number of witnesses. The definition of “promissory note” as given in section 2(22) of the Stamp Act adopts the definition as given in section 4 of the Negotiable Instruments Act of 1881, and includes some instruments not covered by that definition. The petitioner's contention is that as these documents are all dated subsequent to 1919, the amendment introduced by Act VIII of 1919 to section 13 of the Negotiable Instruments Act of 1881, has to be taken into account in reading this definition, and if so read, these documents would be instruments payable to order as they do not contain words prohibiting transfer or indicating an intention that they shall not be transferable. They would thus be instruments attested by witnesses but payable to order and consequently would not satisfy the definition of “bond” as given in section 2(5)(b) of the Stamp Act. In my opinion this argument is not sound. Explanation (1) which, amongst other amendments, was introduced by Act VIII of 1919 to section 13 of the Negotiable Instruments Act of 1881, was meant to enlarge the definition of a negotiable instrument. By this amendment a promissory note not payable to order, which previously was not negotiable, was brought within the class of negotiable instruments; and the amendment, in my opinion, cannot be read into the definition of a bond as contained in section 2(5)(d) of the Stamp Act so as to make an instrument, which on the face of it is not payable to order, one payable to order by virtue of the said explanation and thus to take it out of the said definition. For the purposes of the Stamp Act, the documents, as they appear on the face of them, have to be considered. They are attested by witnesses and are not payable to order or bearer. In my judgment they are bonds within the meaning of the Stamp Act and should have been stamped as such. The second contention, therefore, must fail.
The arguments advanced on the first contention, shortly put, are as follows: It is said that the documents were never admitted in evidence by the Court, as the depositions recorded by the commissioner had not yet been brought on the record by reading them in Court, and that the suits never reached the stage at which the documents could be sought to be used in Court and consequently the Subordinate Judge had no jurisdiction to act under section 35 of the Stamp Act. It is also said that if the documents are treated as having been admitted in evidence by the Subordinate Judge, he was not entitled to reopen the matter and deal with the documents again under section 35 of the Stamp Act by reason of the provisions of section 36. I am of opinion that it is not necessary to deal with the first branch of this contention, because as the suits had already, been disposed of and the decrees signed and sealed, the provisions of section 35 of the Act were wholly inapplicable to the case. The Subordinate Judge had no jurisdiction to proceed in the way that he did.
The Rules should be made absolute and the orders complained of set aside. In view of the fact that the petitioners have no been successful in their second and main contention there will be no order as to costs in their favour.
Graham, J.:— agreed.
S.M
Rule absolute.