The facts are sufficiently set forth in the following judgment of the High Court (1), which was delivered by
White, J.:— The plaintiff Brojender Coomar Roy Chowdhry, who is appellant before us, has sued three defendants, one of whom alone, Brommomoyee Chowdhrain, is the respondent in this appeal, to recover a sum of Rs. 20,825.
He alleges in his plaint that these three defendants borrowed that sum on seven different occasions between the 23rd Assar and the 12th Kartic of 1281, and that the several advances were each entered at the time of borrowing in a hathchitta, which he produced, and which purports against each item to bear the signature of the male defendant and the seal of the two female defendants, of whom Brommomoyee is one. The lower Court has passed a decree against two of the defendants, namely, Sampadmoui and Mohinee Chandra, for the whole amount claimed, but against the second defendant, who is the respondent before us, only for the first item appearing in the hathchitta, viz., Rs. 3500 and interest. A one-anna adhesive stamp was affixed at the head of the defendant's account in the hathchitta which the Court has appropriated to the first item of advance contained in the account. But as regards the remaining six items, no stamp being affixed against any of them, the Subordinate Judge has yielded to Brommomoyee's objection that they are inadmissible in evidence for want of stamp, and has not considered itself at liberty to consider the evidence adduced by the appellant to show what the advances to which these six entries relate were made. Hence the decree against Brommomoyee is confined to the amount of the first advance. The difficulty of the stamp with regard to the remaining six advances was got over in the case of the first and third defendants, because the Court held that upon their pleadings they had admitted the whole sum claimed in the suit to be due, and they have not appealed against the decree which the Court has accordingly passed against them.
The first point we have to consider is, whether the entries in question require a stamp or not. The provision in the Stamp Act, under which the lower Court holds that a stamp is required, is the 5th Article of Schedule II. That article imposes a one-anna stamp upon a particular note or memorandum. The words of the article descriptive of the document to be stamped, and which are considered by the Court below to apply to each item in the hathchitta, are these: “A note or memorandum written in a book whereby a debt or part of a debt amounting to Rs. 20 or upwards is acknowledged to be due.” Now, if any one of the entries in the hathchitta had stood alone and had been intended by the parties to form an isolated entry in the book, it might have been contended with considerable force that it fell within the description of document mentioned in the 5th Article as requiring a stamp. We think, however, that the entries cannot be detached from the account of which they form a part. That account has two sides to it: the one headed “amount advanced,” and the other “amount received.” The amount due varies from time to time and depends upon the relation of the amount advanced to the amount received. In the present case no sum is entered trader the head of “amount received,” but that is an accident, and makes no difference in considering the question as to what is the nature of the document which is offered in evidence. The intention of the parties in requiring the signature or seal of the borrowers to each sum advanced is, strictly speaking, to secure under their hands an acknowledgment that the sum is advanced. Whether or not that sum is due, or a larger sum or a less sum, depends upon the state of the account. In determining whether a document comes within the description of a document upon which a stamp is imposed by the Stamp Act, we must look at the entire document, and see whether it fairly falls within the description.
The document in this case, which is offered as evidence, is not a note or memorandum acknowledging a debt or part of a debt to be due, nor a series of such entries and memoranda, but an account between the parties of the character above mentioned, and as such, did not, in our opinion, require a stamp. As it appears that all the evidence is before us which the parties intended to produce, we are not at liberty to remand the suit, but must dispose of it upon the evidence before us………………………….
(His Lordship then discussed the evidence before the Court, and upon consideration of all the facts, arrived at the conclusion that the plaintiff's contention must prevail.)
We, therefore, vary the decree of the lower Court by directing that the plaintiff do recover the Rs. 20,825 from all the three defendants, Sampadmoni, Brommomoyee, and Mohinee, with costs and interests at the rate of six per cent.
The plaintiff, appellant, will get his costs in this Court upon the whole amount of his claim.