Habibul Rahman Khan vs Anwar Khan

Courtney-Terrell, C.J.—This is a petition for revision of an order of a Judge of the Small Cause Court in a case in which the plaintiff sued for recovery of two debts One claim was based upon a hand-note, dated June 1929, to secure a sum of Rs. 75. The other was to recover Rupees 125 lent by oral arrangement in August 1929. The suit was begun on 23rd December 1932, and therefore but for the circumstances which I am about to mention, that would have been barred by limitation in respect of both debts. But the plaintiff sought to put in a letter of acknowledgment, dated 31st December 1929, and in that letter the debtor referred to the two debts in question, stating that the creditor might have full faith in him, that he intended to reap his crops very shortly and that within three weeks he would be ready to pay the amount and that the creditor might rely upon the faithful performance of his promise to pay the sum within that time.

The Small Cause Court Judge, while prepared to hold that the letter if admitted would have given a new start for a period of limitation u/s 19, Limitation Act, nevertheless held under Article 1, Schedule 1, Stamp Act, that the document not being stamped could not be admitted in evidence. In this decision I am of opinion that he was wrong. The words of the article have received a considerable amount of attention by the Courts and their meaning has become reasonably clear. That upon which duty must be paid is:

an acknowledgment of a debt exceeding Rupees 20 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 the banker''s pass-book) or on a separate piece of paper when such book or paper actually is left in the creditor''s possession: provided that such acknowledgment does not contain any promise to pay the debt or any stipulation to pay interest or to deliver any goods or other property.

The important words are "in order to supply evidence of such debt." This is an adverbial phrase qualifying the words "written by a debtor" and therefore as was held in Surjimull Murlidhar v. Ananta Lal Damini 1924 Mad 352, the primary question is for what purpose was the letter written by the debtor. In coming to that conclusion, the Madras High Court came to a similar view as a Bench of the Calcutta High Court in Ambica Dat v. Nityanund Singh (1903) 30 Cal 687, that it is not enough that the letter should be a mere acknowledgment in order to incur the duty; it must be an acknowledgment which was made with a particular purpose by the debtor, that is to say, in order to supply evidence of such debt. Furthermore, even if it is written with the object of supplying evidence of such debt, the concluding words of the article show that it will not have to pay duty if it contains a promise to pay the debt or any stipulation, etc.

Now, in this case the meaning of the debtor is merely that the creditor is asked not to press him, that he gave assurance to the creditor to have confidence in the debtor''s intention to pay and furthermore there is a promise to pay within a period of three weeks.

In my opinion therefore the letter is not liable to the stamp duty of one anna. The policy of the article seems to be to provide for cases where the debtor and the creditor come to an arrangement between themselves that in consideration of sometime or other advantage being granted by the creditor to the debtor the creditor demands as a condition that the debtor shall relieve him from the apprehension that the debt may be barred by limitation, or that the evidence upon which he would be able to rely may not be available at the time of the suit and it refers therefore to the special bargain where the debtor agrees to give the creditor evidence upon which he may rely to enforce the debt as a condition of a concession by the creditor to the debtor.

The learned Judge of the Small Cause Court was, in my opinion, wrong in rejecting the letter. The case should be remitted now to the Small Cause Court to take the letter into consideration, and having done so, to decide the case according to law. No one appears on behalf of the respondent and therefore there will be no order as to costs.

Luby, J.

I agree.