SRI. SHARIF AHMED Vs. BANK OF BARODA

JUDGEMENT

(1.) THE respondent has filed O.S. No. 80/2009 against the petitioner in the Court of Principal Senior Civil Judge and C.J.M. at Davanagere to pass a decree in its favour and against the defendant for realization of Rs. 5,76,039/ - with Court costs, current and future interest and for grant of consequential reliefs. The petitioner/defendant filed written statement and sought dismissal of the suit. He has made a counter claim to pass a decree against the plaintiff for realization of Rs. 2,81,906/ - with interest. Issues having been raised, trial has commenced. For the plaintiff a witness deposed as PW. 1, through whom, Ex. P. 1 - Promissory Note was marked. The petitioner/defendant filed on 07.11.2012, I.A. 7/2012, to direct the plaintiff to pay the duty and penalty of Rs. 3,57,500/ - on the instrument marked as Ex. P1. He filed I.A. 8/2012 on the same date to recall the order dated 24.01.2012, on which date, the alleged insufficiently stamped document - Promissory Note was marked as Ex. P1. For the plaintiff, objections having been filed, the learned Trial Judge having heard the learned counsels of the parties, finding that the document does not amount to a Bond as contended by the defendant and the defendant having not been objected to the marking of the document at the time of trial and I.As. 7 and 8 having been filed at the belated stage, passed an order of rejection on 14.12.2012. Assailing the said order, these writ petitions have been filed. Sri. M. Rama Mohan, learned advocate appearing for the petitioner contended that Ex. P. 1 does not have characteristics of a promissory note and hence, it is required to be considered as Bond and the document having been drawn on insufficiently stamped paper is liable for impounding and payment of duty and penalty by the plaintiff. Learned counsel further contended that I.As. 7 and 8 having not received proper consideration and the impugned order being irrational, interference in the matter is warranted.

(2.) PERUSED the writ record.

(3.) IN the case of Javer Chand and others Vs. Pukhraj Surana, : AIR 1961 SC 1655, the Apex Court has held that 'once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case, S. 36 of the Stamp Act comes into operation.' It has been further held as follows: -