Wanchoo, C.J:— This is a revision by Sahu Brijraj Sharan under sec. 115 of the Code of Civil Procedure, and arises in the following circumstances.
2. A suit was filed by Sahu Raghunandan Sharan against Sahu Brijraj Sharan and his son Mahesh Chandra for a sum of Rs. 5793/15/3 on the basis of a document, dated the 6th August, 1948. The suit was resisted by the defendant Sahu Brijraj Sharan, and a preliminary issue was framed whether the document in question was admissible in evidence. In that connection, the case of the applicant was that the document was a promissory note, and as it was unstamped it was inadmissible in evidence under sec. 35 of the Stamp Act. The contention of the plaintiff on the other hand, was that the document was an agreement and could be admitted in evidence on payment of duty and penalty. The court decided by its order, dated 1st October, 1953, that the document was an agreement, and could be admitted in evidence on payment of duty and penalty. Thereupon, the applicant applied to the court that he was filing a revision, and that duty and penalty be not accepted and the document be not admitted in evidence, as otherwise sec. 36 of the Stamp Act would come in his way. So the court stayed acceptance of duty and penalty, and the document has not yet been admitted in evidence.
3. The question lis whether the document, with which we are concerned, is a promissory note or not. It is in the following words:
“Shriman Sahu Raghunandan Sharanji, Sambhar Lake,
In your account Rs. 4,668/15/- are due from my son Mahesh Chandra.
I shall pay that amount by December, 1948. You rest assured.
Brijraj Sharan”
6/8/48.
The definition of a promissory note is given in sec. 4 of the Negotiable Instruments Act in these words—
“A promissory note is an instrument in writing (not being a bank note or a currency note) containing an unconditional undertaking, signed by the maker, to pay a certain sum of money only to, or to the order of a certain person, or to the bearer of the instrument.”
4. In order, therefore, that document should be a promissory note, it is necessary that there should be—
(i) an unconditional undertaking to pay,
(ii) the sum should be a sum of money and should be certain,
(iii) the payment should be to or to the order of a person who is certain, or to the bearer of the instrument,
(iv) and the maker should sign it.
If these four condition are present, a document becomes a promissory note. We have therefore, to see whether in this document all these four conditions are present. We may mention that the court below has held that this document is not a promissory note because it is not certain to whom the money is to be paid. The other three conditions, namely—
(i) that there should be an unconditional undertaking to pay,
(ii) that the amount should be an ascertained sum of money, and
(iii) that the document should be signed by the maker.
are present in this case. Now all that has to be seen is whether the person to whom the payment is to be made is certain or not.
5. The lower court has stressed the fact the after the words “I shall pay”, the name of the payee does not appear. Therefore it has come to the conclusion that the payee is uncertain, and the document cannot be a promissory note. The trial court seems to have been led away by the fact that the payee was not specifically named after the words. “I shall pay”. But looking to illustration (b) of sec. 4 of the Negotiable Instruments Act, it is clear that if the person to whom the payment is to be made is certain from the words used in the document, that fact that name is not mentioned after the words “I shall pay”, or similar words would not mean that the payee was uncertain, and the document was not a promissory note. Illustration (b) is as follows:
“I acknowledge myself to be indebted to B in Rs. 1,000/- to be paid on demand, for value received.”
In this illustration also, the words “to him” do not appear after the words “to be paid”, but still the law gives this as an illustration of a promissory note. Therefore, it does not seem essential to our mind that the payee should be specifically named after the words, “I shall pay”, or similar words, provided on reading the document as a whole there is no doubt as to the person who is the payee.
6. Reading this document, therefore, in this light, we are of opinion that the payee is quite certain. The document is in the form of a letter from Sahu Brijraj Sharan to Sahu Raghunandan Sharan, and says that a certain sum of money was due from the writer's son to Sahu Raghunandan Sharan. Then the writer goes on to say that he shall pay that amount by the end of December, 1948, and adds that the person, to whom the letter is written, should rest assured on that point. It is, to our mind, quite clear that the person to whom the payment is to be made is Sahu Raghunandan Sharan, and nobody else. When the writer says that he shall pay the money by the end of December, 1948, he does not mean that he would pay it to any third person. It very obviously means that he shall pay it to Sahu Raghunandan Sharan. On the language, therefore, of this document, it must be held that the payee is a certain person.
7. In this connection, we may refer to certain cases in support of the view that we have taken. The first case to which we may refer is Chadwick v. Alleu (1). There the document was in this form—
“I do acknowledge…….£ 15 $ 5.
balance due to Sir Andrew. I am still indebted, and do promise to pay.” It was held that this was a promissory note. It will be noted that the person to whom the payment was to be made was not mentioned after the words “to pay”. But it was clear from the whole tenor of the document that person could be no body other then Sir Andrew.
8. The next case is Green v. Davies (2).
In that case, the promissory not was in this form—
“Received of A.B 100 £ which I promise to pay on demand, with lawful interest.”
Here again the person to whom the payment was to be made was not mentioned after the words “to pay” but it was clear from the tenor of the document that person could only be A. B, and nobody else the document was held to be a promissory note, and the court relied on Chadwick v. Allen (1). Illustration (b) of sec. 4 of the Negotiable Instruments Act is also on the same line as this case.
9. The next case, to which reference may be made, is At. N. At. Chockalingam Chettiar v. Rama Mu Rama Palaniappa Chettiar (3) There also the words were—
“Principal will be paid and this letter taken back by me.”
It was not mentioned after the words “will be paid” who the person was to whom the payment would be made. But the learned Judges held that when the promisor and the promisee were clearly indicated, and there is a definite promise to pay, the document is a promissory note, and reliance was placed on illustration (b) of sec. 4 of the Negotiable Instruments Act.
10. We may also refer to a case on the other side, namely Narbada Prasad Ajodhya Prasad v. Mst. Sunki (4). In that case, the document was called Indul Talab Rukka. (Demand Note) and the words were, after mentioning what amount had been borrowed and from whom—
“I hereby agree that I will repay on demand the aforesaid amount together with interest thereon.”
The person to whom the repayment was to be made was not mentioned after the warns “reply”, and the learned Judge, who decided this cases held that this did not amount to a promissory note. With all respect to the learned Judge, we must express dissent from the view that be has taken. We may add that in this case Illustration (b) to sec. 4 was not referred to. Further, as we read the document, which is set out in full in the judgment, the person, to whom the repayment is to be made, is quite certain. It could not be the intention of the person writing that pro-note to pay it to anybody except the person from whom he was borrowing the money. We are, therefore, of opinion that where the person, to whom the payment is to be made, can be certainly found out from the language of the document, the document would still be a promissory note, though the name of that person is not mentioned after the words “I shall pay” or similar words appearing in such document. In this view of the matter we hold that the document is a promissory note, and is inadmissible in evidence under sec. 35 of the Stamp Act as it is not stamped.
11. We, therefore, allow this revision, set aside the order of the court below dated the 1st October, 1953 by which it ordered that the document will be admitted in evidence on payment of duty and order that the document being a promissory note is inadmissible in evidence. As the opposite party has not appeared, we pass no order as to costs.