JUDGMENT
The suit was for Rs. 974-1-11 being the principal and interest due by the defendant on account of dealings carried on with Plaintiff from January 1917 to 22nd August 1926 on which date the balance was struck.
To save limitation the Plaintiff relied on an entry by the Defendant dated 22nd August 1926 in Plaintiff's account book which runs as follows:
“This sum of Rs. 800-11-3 will be paid by me immediately.”
The debt was denied and various defences raised, but the suit was dismissed on the preliminary point that the entry relied on to save limitation, being a pronote and not being stamped, was inadmissible and hence the suit was barred by limitation.
This Civil Revision Petition has been filed against that order.
The learned Sub-Judge has also discussed the contention that the entry is an acknowledgment under Art. 1, Schedule 1 of the Stamp Act. I agree with him that the proviso to that section clearly takes this entry out of that definition. He has however held that it is a pronote but he has failed to deal with the point raised before me that the payee is not named. The two cases which he quotes Muthu Sastrigal v. Visvanatha Pandarasannadhi and Karuthappa Rowthan v. Bava Moideen Sahib, are both cases where the payee was named and so are not relevant to the point in issue.
Two cases directly in point are quoted for the Petitioner.
(1) Lala v. Bhaga, where the question arose whether an entry of this sort which had been stamped with a one anna stamp as a pronote, was properly stamped and whether it was not to be stamped as a bond. The learned Subordinate Judge who referred that matter in a note of considerable length and interest quoted a number of rulings, and concluded that the case-law did not afford much help He expressed no opinion. The Full Bench in a judgment of 3 lines which gives no reasons held that the document was a bond and should be stamped as such. Although the actual question was whether the document was sufficiently stamped, this depended on its nature which is the great point here.
(2) The other case is Emperor v. Kallu Mal and Emperor v. Gulzari Lal, where it was held that the document was not a pronote, the payee not being named.
In an earlier Bombay case, Devachand v. Hirachand Kamaraj, a Full Bench case (alluded to in 3 Bom. L.R 699) the same point came up but the matter was decided on another ground that the document having been admitted in evidence, its validity with regard to the stamp on it could not be questioned.
A case which is also in Petitioner's favour is Chandra Prasad v. Varajlal. There also the payee was not named and the Court held that it was not a pronote but that it would fall within S. 25 Cl. (iii) of the Indian Contract Act, 1872, if it were proved that at the time when Defendant signed the khata he was one against whom the debt might have been enforced but for the law of limitation.
For the Respondent is quoted Ram Das v. Inayat-Ullah. The exact words of the document are not quoted in the judgment but from the summary given it would appear that the Plaintiff was named as the payee. The other cases quoted on either side are not really relevant.
In Mulji Lala v. Lingu Makaji, (mentioned by the lower Court) an entry like this was held to be an acknowledgment, but there was there no promise to pay, which, as observed above, takes the present document out of the definition of an acknowledgment.
In Mahadeo Kori v. Sheoraj Ram Teli, the payee was named but it was held that as there was a stipulation to pay interest it fell under 5 (c) of the First schedule of the Stamp Act of 1899.
Chandick v. Ananta Lal Damani also is not relevant as it deals with the question of intention which only arises if the document can otherwise come under the definition of acknowledgment in Art. 1, Sch. 1.
All the direct authorities are in Petitioner's favour and there is none quoted which supports Respondent. The lower Court has failed, in considering whether this document is a pronote or not, to deal with the most important point whether the payee is named. The penalty of having the suit dismissed because the document is not stamped is a very severe one and the ends of justice certainly require that if the document is neither a pronote nor an acknowledgment the Plaintiff should have a chance of stamping it properly and putting it in as evidence.
If this document is neither a pronote nor an acknowledgment I should have been inclined to regard it, as contended for by the Petitioner's pleader, as either an agreement or a memorandum of agreement. In the somewhat similar case, 3 Bom. L.R p. 699, the Full Bench held that such a document was a bond. I leave this point to the decision of the lower Court. The decree is set aside and the suit restored to file and plaintiff should be allowed an opportunity of stamping the document correctly. If he does so, within the time allowed him by the Court, the trial should proceed on the other issues. Costs of this Civil Revision Petition will be costs in the suit.
This petition having been set down to be spoken to this day, the Court made the following
Since passing this order, my attention has been drawn to the fact that in 3 Bom. L.R p. 699, there was an attestation. I therefore had the order spoken to again after notice. It is clear that where there is no attestation as in this case the document cannot be a bond, vide Bidhuranjan Majumdar v. Mangan Sarkar*, Reference under Act I of 1879—17 All. 211 and Reference under Stamp Act, S. 49—10 Mad. 158. Vide also S. 2 Cl. 5 (b) of the Stamp Act. That being the case the last paragraph of my order will be amended as follows: for, “I should have been inclined to regard it,” read, “I regard it,” and omit the sentences, “In the somewhat similar case, 3 Bom. L.R page 699 the Full Bench held that such a document was a bond. I leave this point to the decision of the lower Court.”
N.R.R
Case remanded.