Khaju Khan vs Rajendra Prasad

P.R. Sharma, J.—This revision application has been preferred by the plaintiff against an order dated 18-4-1960 passed by the First Addl. District Judge Shajapur, in Civil Original Suit No. 5 of 1959.

The plaintiff alleged that the defendant had on 11-6-1956 borrowed from him a sum of Rs. 10,000/- agreeing to return the money within one month. On 11-7-1956 the defendant expressed his inability to repay the loan and wanted further time for one year. He addressed a writing to the plaintiff to the following effect:-

The defendant in his written statement objected inter alia that the document being a promissory-note and being unstamped is inadmissible in evidence.

The trial Court relying on the decisions reported in Gopaldas Vs. Ramdeo, and Gordhansingh and Others Vs. Suwalal and Kalyanbux and Others, held that the document was a premissory note and being un-stamped was inadmissible in evidence.

The plaintiff has now come up in revision against this order

Article 49 of the Indian Stamps Act imposes a duty on "promissory-notes" as defined by S. 2 (22) and by that sub-section a promissory-note means a promissory-note as defined by the Negotiable Instruments Act (1881). By S. 13 (1) of the Negotiable Instruments Act a negotiable instrument means a promissory-note payable either to order or to bearer. According to Expln (1) thereof a promissory-note is payable to order which is expressed to be so payable or which is expressed to be payable to particular person and does not contain words prohibiting transfer or indicating an intention that it shall not be transferable. In the presant case the promise is to pay to a particular person and there are no words prohibiting transfer or indicating an intention that it shall not be transferable.

It was held in Gordhansingh and Others Vs. Suwalal and Kalyanbux and Others, that the other conditions being fulfilled, if the promise to pay is the substance of the instrument and there is nothing inconsistent with the character of the instrument as substantially a promise to pay, the document is a promissory-note.

An un-reported decision of my learned brother Tare J. in Civil Revision No. 10 of 1960 (Bihari lal and others vs. Shri Tulsiram) was cited before me by the learned counsel for the applicant. In that case the document merely contained a statement to the effect that the amount mentioned therein was to be payable after two years. The question, therefore, arose whether the intention of the parties was to make a promissory-note. But in case where the instrument contains a definite promise to pay to a particular person, Explanation (1) to S. 13 (1) of the Negotiable Instruments Act will apply with the result that if the instrument does not contain words prohibiting transfer or indicating an intention that it shall not be transferable the promissory-note shall be deemed to be payable to order. In such a case no question of proving the intention of the parties by evidence extrinsic to the document can possibly arise. The decision relied on by the learned counsel for the applicant can, therefore, have no application to the present case.

The result is that this revision application has no force. It is hereby dismissed. Since no one appears to oppose the revision there shall be no order as to costs.