Gulabchand Jain vs Bhama

Shivdayal, J.—The only question in this revision is whether the entry with the words "Baqi Lena" (indicating a making of accounts) in the account book of the creditor, signed by the debtor, is a bond within the meaning of section 2(5) of the Stamp Act.

The revision-petitioner instituted a suit against the respondent on foot of an entry in his books of account which reads as follows :--

8187 HISAB KAR BAQI LENA RAHA MI. ASADH BADI 3 SA, 2020 TA. 10-6-63 RUPAYA EKYASI SAO SATTASI 8187 RUPYA BAQI LENA.

DA. BHAMA NAYAK.

GA. DEVIPRASAD CHOUBE KI UPAR LIKHE MUJAB RUPAYA DENA MANIOOR KIYA. BHAMA NAYAK KI KAHANE SE GAWAH KI.

The trial Court has held that it is a bond within the meaning of the Stamp Act.

It is a contended by the Learned Counsel for the petitioner that it is a mere acknowledgement in as much as the words "Baqi Lena" are indicative of a statement made by the creditor and not by the debtor. Therefore, in this entry, the debtor only acknowledges the amount due to be the sum specified therein but he does not oblige himself to pay the money to the creditor.

There is a Division Bench decision in Bhanwarlal v. Navalkishor, First Appeal No. 13 of 1953, (Gwalior Bench). There is a discrepancy in the reporting of that decision in regarding the reproduction of the entry in that suit 1957 MPC 706 : MR 1958 MP 2(sic).: 1957 JLJ 954. The last words in the entry are "Baqi Dena" as reported in the All India Reporter, and not "Baqi Dena" as reported in the M. P. C. This I have ascertained from the original judgment. The decision in Bhanwarlal''s case (supra) was followed in Premsingh v. Gajarabai 1959 JLJ 62. This later decision has quoted the wording of the entry from 1957 M. P. C. 706. although the A. I. R. citation has been given within brackets. The question is of every day recurrence. Although it can be said with regard to the expression "Baqi Dena" that it amounts to a bond on the authority of Bhanwarlal v. Nand Kishore (supra) and also Hiralal and Others Vs. Badkulal and Others, , in my opinion, the question whether the words "Baqi Lena" also mean an obligation to pay the money within the meaning of section 2(5) of the Stamp Act must be decided by a Division Bench.

Let the papers be laid before my Lord the Chief Justice for construing an appropriate Bench.

ORDER

Raina, J.

This reference arises out of a revision petition filed by the plaintiff Choudhary Gulabchand Jain. He filed a suit against the defendant Bhama for the recovery of a sum of Rs. 8,187 on the basis of an entry signed by the defendant in the account books of the plaintiff. The entry reads as follows :--

The trial Court held that it was a bond within the meaning of the Stamp Act and directed the plaintiff to pay the duty and penalty which is to be charged for the bond. Aggrieved by this order the plaintiff filed the revision petition. Shivdayal, J., before whom the revision came up for hearing, referred the question whether the entry in the account books was a bond within the meaning of section 2(5) of the Stamp Act (hereinafter referred to as the Act) in the following terms :--

Although it can be said with regard to the expression "Baqi Dena" that it amounts to a bond on the authority of Bhanwarlal v. Nand Kishore (supra) and also Hiralal and Others Vs. Badkulal and Others, in my opinion, the question whether the word ''Baqi Lena'' also mean an obligation to pay the money within the meaning of section 2(5) of the Stamp Act must be decided by a Division Bench.

The main contention of the Learned Counsel for the plaintiff is that the entry amounts to an acknowledgment and not a bond within the meaning of section 2(5) of the Act. In order to appreciate this contention it is necessary to refer to the definition of ''Bond'' as given in section 2(5) of the Act, which reads as follows :--

''bond'' includes-

(a) any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be;

(b) any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another; and

(c) any instrument so attested, whereby a person obliges himself to deliver grain or other agricultural produce to another :

The relevant clause of the aforesaid provision is clause (b) and as the other conditions laid down therein are fulfilled in this case, the main question is whether by this instrument the defendant obliged himself to pay money to the plaintiff, or merely acknowledged an existing liability.

It may be here mentioned that the word "acknowledgment" has not been defined in the Act, but it would be pertinent to refer to Art. 1 of the Act which gives its description as under :--

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 an acknowledgment does not contain any promise to pay the debt or any stipulation to pay interest or to deliver any goods or other property.

From the proviso in the aforesaid description it is clear that where an acknowledgment contains a promise to pay the debt it is not to be stamped as an acknowledgment under the Act. Thus, on reading the aforesaid description in Art. I with sub-section (5) of section 2 of the Act it would appear that where an acknowledgment contains a promise to pay it is not to be stamped as an acknowledgment, but will have to be stamped as a bond, where it is attested by a witness and is not payable to order or bearer.

There can be no difficulty in considering whether a particular instrument is a bond or a bare acknowledgment for the purposes of the Stamp Act, where such instrument contains an express promise to pay. The difficulty can arise only where the promise to pay is implied. It has been held in a number of cases that the definition of ''Bond'' as given in sub-section (5) of section 2 of the Act covers only such instruments whereby a person expressly obliges him-self to pay money and not one from which the law merely implies such an obligation. In Chhaganlal v. Emperor 20 MPLC 510=3(sic)NLR 108, it was held that the mere signing of the balance in account books does not necessarily make such an instrument a bond even though an obligation to pay is implied. Similarly, in Sobhigmal Kesharimal v. Ramnivas Murlidhar 1961 JLJ 143: 1961 MPLJ 293, Newaskar, J. made the following observations in paragraph 2 : --

There is nothing in the operative part of the document to suggest that the writer had made an express promise to pay the amount although an implied promise to pay can be inferred by reference to the date of maturity mentioned. That would not amount to even an agreement much less a bond.

In Bhawanilal v. Madanlal 1963 JLJ 743 the "words were construed as express promise to pay. In this decision reliance was placed n(sic)n earlier decision of this Court in Bhansarlal Paramsukh and Others Vs. Navalkishor Mungalal and Others, referred to by Shivdayal J. in his order of reference. Shivdayal, J. has rightly pointed out that the actual words in the entry in that case are and not as reported in M. P. C- and also in JLJ.* Thus, the decision of the Division Bench of this Court in Bhanwarlal v. Naval Kishore (supra) merely lays down that where the entry contains the words it contains an express promise to pay the debt. From the aforesaid decisions it would be clear that where an instrument contains an express promise to pay, the instrument may amount to a bond within the meaning of sub-section (5) of section 2 of the Act if the other conditions laid down in the said sub-section are fulfilled.

No decision has been brought to our notice in which an instrument containing an implied promise to pay may have been adjudged to be a bond within the meaning of section 2(5) of the Act. In Hiralal and Others Vs. Badkulal and Others, their Lordships relied on the decision of the Privy Council in Maniram v. Seth Roopchand 33 IA 165 wherein it was held that an unconditional acknowledgment implies a promise to pay, because that is the natural inference, if nothing is said to the contrary. Their Lordships, however, had no occasion to consider whether an implied promise to pay would bring the instrument within the purview of section 2(5) of the Act and make it chargeable as a bond if it was attested and not payable to bearer or order. An acknowledgment may imply i promise to pay as held by their Lordships, but in our view unless the instrument contains an express promise to pay it would not fall within the purview of section 2(5) of the Stamp Act.

We may here refer to the Full Bench decision of the Lahore High Court in AIR 1942 50 (Lahore) on which the Learned Counsel for the plaintiff strongly relied. In that case the earlier decision of the Lahore High Court Firm Dulichand v. Panthi AIR. 1918 Lah. 511 was overruled, and it was held that what is taxed is not the transaction, but the document, and, therefore, whatever implied promise there may be involved in an unconditional acknowledgment, it can never be a bond unless the obligation is contained in the document itself in express terms.

Thus, there is ample authority for the view that unless promise to pay is clearly expressed in the instrument it cannot fall within the definition of the ''Bond'' given in section 2(5) of the Act and this in our opinion is the correct view.

The next question for consideration is whether the entry in question contains an implied promise to pay or an express promise to pay. An entry in an account book containing the words has been consistently interpreted by this Court as containing an express promise to pay. The question now posed for consideration is whether an entry containing the words also amounts to an express promise to pay or not. Before proceeding to deal with this question we may point out that whether a particular entry contains an express promise to pay or not can property be decided by considering the entry as a whole and not merely by referring to a particular portion thereof

A reference to the entry in question would show that it has been made by the creditor stating that after accounts, certain amounts was found due. In our view, where a creditor states that a certain amount is due to him and the debtor merely signs the entry it is nothing more than an acknowledgment by him of the amount found due. There may be an implied promise to pay, but the entry cannot be construed a; containing an express promise to pay. The Full Bench of the Lahore High Court in Shiva Ram''s case (supra) held that the expression meant the same thing and they amount to mere acknowledgment. It may here be mentioned that in the case before their Lordships they were required to consider an instrument containing an entry and, therefore, the observations with regard to the entry were in the nature of oblter dictum. With great respect, so far as the expression is concerned, it has already been held by this Court to amount to express promise to pay and we see no reason to take a different view, because the word clearly means to pay and, therefore, an entry containing the words does contain an express promise to pay. But the position would be different where an entry contains the words Such an entry, if signed by the debtor merely amounts to an acknowledgment of his liability. It may imply a promise to pay on which a suit may lie, as held by their Lordships of the Supreme Court in Hiralal v. Badkulal (supra). But it does not amount to a bond within the meaning of section 2(5) of the Act.

We are, therefore, of the opinion that an entry in the creditor''s account book containing the words signed by the debtor is not a bond within the meaning of section 2(5) of the Stamp Act, even though it is attested and we answer the reference accordingly.