LAXMI NARAIN GUPTA Vs. SURAJ BHAN DARUKA

JUDGEMENT

(1.) This order will govern the disposal of I.A. 5495/89. Plaintiff filed suit under Order XXXVII, Civil Procedure Code alleging that he gave as friendly loan a sum of Rs. 4,46,000.00 on 6th March, 1986 for one month without interest to the defendant who acknowledged payment thereof vide receipt dated 6th March, 1986. Since the defendant withheld repayment of the said amount despite repeated requests, he is liable to pay interest thereon @ 20% p.a. being the market rate with effect from 5th April, 1986. It is further alleged that the plaintiff got a legal notice dated 14th February, 1989 sent to the defendant to pay the said amount alongwith interest on his residential address but he kept on avoiding receipt thereof. Thereupon another legal notice dated 28th February, 1989 was sent to the defendant by registered AD post as well as under certificate of posting but he has failed to pay the said amount together with interest, total being Rs. 7,13,600.00. Suit is sought to be decreed for this amount alongwith interest pendente lite and future @ 20% p.a.

(2.) In the suit, defendant filed said I.A. 5495/89 seeking leave to defend suit on the grounds that Receipt dated 6th March, 1986 is inadmissible in evidence being unstamped; plaintiff is not entitled to interest much less @ 20% p.a.; said Receipt is without consideration and suit on the basis thereof is not maintainable under Order XXXVII, Civil Procedure Code.

(3.) Said original receipt dated 6th March, 1986 is placed on Part in file. Admittedly, it is unstamped. Stamp duty chargeable on a receipt as defined by Section2(23) of the Indian Stamp Act, 1899 for an amount exceeding Rs. 20.00, is 0.20 paise as per entry 53 in Schedule I appended to the Act. Under Section 35 of the Act any instrument not duly stamped is inadmissible in evidence. Contention advanced by Mr. K.N. Kataria for plaintiff was that on payment of a penalty of rupee one by the plaintiff, said receipt can be admitted in evidence under Section 35(b) of the Act. However, relying on a decision in Yogendra Patwardhan v. Khandelwal Hermann Electronics Ltd., 90 Bombay Law Reporter 560 (Vol. XC-1988) the submission advanced by Mr. R.S. Kela for defendant was that in a summary suit admissibility of document(s) has to be seen at the time of filing of suit and said receipt, therefore, cannot be looked into at this stage and present suit is not maintainable under Order XXXVII, Civil Procedure Code. Said decision does support the contention advanced by Mr. Kela, Advocate. My attention was also drawn on behalf of defendant to an order dated 22nd January, 1992 passed in I.A. 8736/90 in Suit No. 1232/90 by a learned Single Judge of this Court by which defendant No. 4 in that suit was granted leave to defend suit on the ground of Hundi which was the basis of the suit, being insufficiently stamped.