Mangilal vs L. Rs. of Lal Chand

N.K. Jain, J.—This is plaintiff''s revision filed u/s 113, C.P.C. against the order dated 1-4-1983 passed by the learned District Judge, Pali whereby while deciding issue No. 3 as preliminary issue, it was held that suit document being a pronote not sufficiently stamped, is inadmissible in evidence.

Briefly stated the facts of the case are that the plaintiff filed a suit on 6-8-76 for recovery of Rs. 83,500/- on the basis of a letter dated 28-10-1973. The defendants Nos. 1 and 2 resisted the suit and filed their separate written statements on 6-10-79 and 25-2-1977 respectively stating that accounts have been settled on 27-10-93 and nothing subsists as there is no dealing between the parties. The defendants also raised a preliminary objection that the suit is not maintainable as the document is not properly stamped. The learned trial Court framed as many as five issues on 3-1-1981 including the issue No. 3, which runs as under: --

"Whether the suit document not being properly stamped is inadmissible in evidence?"

The learned trial Court after considering the point raised by the defendant, that suit document is a pronote having all the necessary ingredients for constitution of document as a pronote, held that the suit document is a pronote and inadmissible in evidence for want of sufficient stamp and decided the issue No. 3 against the plaintiff vide order dt. 1-4-1983. Hence, this revision.

This revision is pending since 4-6-1983. It has been admitted by this Court on 9-8-1983 and proceedings were stayed. It has come up before me today for hearing.

As agreed by the learned counsel for the parties the matter is heard finally.

Mr. Arvind Samdariya, learned counsel for the non-petitioners has raised a preliminary objection regarding the maintainability of the revision in view of the Full Bench decision of this Court rendered in Harakchand''s case 1969 WLN 457. He has supported the decision of the learned trial Court and submitted that it has rightly held that the suit document being a promote not sufficiently stamped, is inadmissible in evidence.

Mr. Bhandari, learned counsel for the petitioner has submitted that the suit document is a letter by which certain amount was to be paid to the plai''ntiff by the defendant which carries interest also and at the most that can be construed as an undertaking given by the defendant to pay the certain amount or as a letter for an agreement. He has also contended that since the impugned ord er affects the final decision of the suit, the same can be examined in revisional jurisdiction. He has relied on Shaik Jaffar Shaik Mahmood and Others Vs. Mohd. Pasha Hakkani Saheb and Others, Kundanmal v. Nand Kishore (AIR 1994 Rajasthan I), Nanga Vs. Dhannalal and Others, , Shiv Raj and Another Vs. Ram Swaroop, and Potula Subba Rao v. G. Ganga Rao AlR 1985 Ori. 140.

First of all 1 proceed to examine the preliminary objection raised by the counsel for the defendant-non-petitioners regarding the maintainability of the revision.

In the Full Bench decision rendered in Harak Chand''s case (supra), this Court has held that a particular evidence is admissible in evidence or not is a question which is within the discretion of the trial Court which had the jurisdiction to decide it and no revision lies against such a decision.

The principle enunciated in the aforesaid decision that such erroneous decision does not amount to be an error in the manner of exercise of jurisdiction has also not been disputed by the learned counsel for the petitioner but he has contended that if an interlocutory decision of the trial Court ultimately decides the case finally then certainly this Court can interfere in the revisional jurisdiction and this point has not been con- sidered by the Full Bench in the aforesaid decision, therefore, revision is no bar.

In Shekh Mohd. v. Mohd. Passa (supra) their Lordships while dealing with the point of revisional power of the High Court u/s 26(e) of Hyderabad House (Rent Eviction and Lease) Control Act, 1954 in a case where u/s 26(c) the High Court interfered with the decision of con troller as well as appellate Court by reap- preciating the evidence on record and set aside the concurrent finding arrived at by the Courts below, have interpreted the term "acted illegally" and "or with material-irregu larity" used in the said Act has set aside the decision of the High Court, The said words so used and interpreted by their Lordships are almost identical to the words used in Sec tion 115, C.P.C.

In Potula Subba Rao Vs. G. Ganga Rao, the facts of the case are v ery much simitar to the facts of the present case. In that case the question was relating to whether an ultimate findinggiven by the Court in passing an order erroneously in holding that certain evidence is inadmissible although the same was admissible. Under such circumstances, the High Court of Orissa while exercising its power u/s 115,C.P.C. interferred with the order passed by the Court below and held that the Court has erroneously refused to consider the material evidence which can influence the final decision.

In Kundanmal v. Nand Kishore (supra) this Court has also expressed the same view holding that erroneous finding as to the admissibility of evidence can be challenged u/s 115, C.P.C. because such a finding decides the case finally.

In view of the aforesaid decisions, in my view the preliminary objection raised by the learned counsel for the non-petitioner has no force and the same is hereby rejected.

Now, coming to the merits of the case as to whether the document in question is a pronote or a letter of account stated? Before I deal with the same I think it proper to quote relevant provisions of law, which read as under :--

"Section 4. Promissory Note:-- A "Promissory Note" is an instrument in writing (not writing (not being a bank-note or a currency-note) containing an unconditional undertaking signed by the maker, to pay a certain sum of money also to, or to the order of, a certain person, or the bearer of the instrument."

"Section 13 Negotiable Instrument:- (I) "Negotiable instrument" means a promissory note, bill of exchange of cheque payable either to order or to bearer.

Explanation (i)-- A promissory note, bill of exchange or cheque is payable to order which is expressed to be so payable or which is expressed to be payable to a particular person, and does not contain words prohibiting transfer or indicating an intention that it shall not be transferable."......

A careful reading of the aforesaid defini tions of Promissory Note as gixen in the Negotiable Instrument and Indian Stamp Act, it is clear that apart from these definitions the intention of the parties can be gathered from the language used in the documents. In other words the intention of the parties is to be gathered at the time of execution of the document with reference to the substance of the documents and surrounding circumstances in which the document has been executed and this depends upon the facts and circumstances of each case with regard to particular document whether a particular document is a primarily an acknowledgement of debt or receipt or promise to pay a certain amount. (The underline is mine)

In the present case, the document reads as under: --

^^HkkbZth Jh ekaxhyky th Hkwjey th j- rkgj

Jh tk''kqnk

fy[kh cSaxyksj lq ek ekxhykyk dsoy pUn ,.M dEiuh dks eqtjks cpkclh A mijl vkijh jde ns.kh rhdk la- 2030 jk dkrh lqn 1 rd jk :ih;k 62720� v{kjjs :ih;k cklB gtkj lkr lkS chl gehj vVs vkijk ns.kk dkMh;k ls vki mls geksjk esa ys.kk dkM nslh H;kt 1� lsdMk ekgokj lq Hkj nslh okihl phVh nhjkolh gekjs yk;d dke dkt gksos lks fy[kolh ler 2030 dkrh lqn 2**

In Nanga v. Dhannalal (supra) a Full Bench of this Court has held that a promissory note besides fulfiling the requirements as laid down in Section 4 must also be intended by the parties at the time of its execution to be a promissory note. As understood by the commercial person in order to its popular sense which means it must be intended by the parties before negotiable instrument unless it falls within the exceptions provided by the wider definitions of the Stamp Act or otherwise expressly or by implication made not transferable.

In Shiv Raj v. Ram Swaroop (supra), this Court while dealing with promissory note and Khata held that ordinarily document executed in Bahi is called Khata which mainly strikes the balance of amount due and do not contain promise to pay. In that case it has been observed that all the necessary requisite requirements of pronote are present in the document. In such circumstances, the document is a pronote and when the pronote is unstamped, it is inadmissible in evidence u/s 35 of the Indian Stamp Act.

A careful reading of the document shows that there is an account between the parties and in view of the account this amount has become due. In the present case, the relevant words used in the document," are

that ^^mijl vkijh ns.kh rhdk la- 2030 jkdkrh lqn 1 rd jk :ih;k 62720� v{kjs :ih;k cklB gtkj lkr lkS chl gehj vBs vkijk ns.kk dkMh;k lks vki mls geksjk esa ys.kk dkM nslh vkxs C;kt 1� lsdMk ekgokj lq Hkj nslh-* These words give the intention of the

These words give the intention of the partiees at the time of its execution. Such document cannot be considered to be a promissory note even though there is an amount ascertain the person to whom the money has been named and there is promise to pay, yet such document does not fall within the definition of Section 4 of the Negotiable Instruments Act. The underlined portion goes to show that this is an agreement acknow-ledgement of amount due found on account stated. In these circumstances, when the document is not a promissory note, then such a document can be admissible in evidence. Therefore, the trial Court has acted illegally and with material irregularity in treating the document inadmissible in evidence of want of sufficient stamp and the finding regarding the nature of the document to be pronote is set aside.

In the result, the revision is allowed. The order dated 8-4-1983 passed by the District Judge, Pali is set aside. Cost of the revision is made easy.