SHIV KUMAR GUPTA Vs. PARMANAND

JUDGEMENT

(1.) The petitioner impugns the order dated the 16th of February, 1972, by which his suit instituted through the plaint dated the 23rd of September, 1971, for the recovery of Rs. 318.00 on the basis of a document which he called a Hundi was dismissed.

(2.) The petitioner came to court alleging in paragraph 11 of the plaint that the respondent had executed a hundi for Rs 300.00 for consideration in his favour on 21st of September, 1970, and that the amount which became due on 20th September, 1971, had not been paid.

(3.) The controversy which arose before the trial court was regarding the nature of the document. It was urged on behalf of the defendant that the document was a promissory note and having not been executed on a stamped paper of the value ofRs.3.00 was in admissible in evidence. As a promissory note, it was contended, the document would have been admissible in evidence if it had been executed on a stamped paper of the value of Rs.3.00. Reliance was placed on Article 49(v) of Schedule 1-A of the Indian Stamp Act. The court below reproduced the document in paragraph 3 of the impugned order and came to the conclusion that it was a promissory note and since it had not been executed on a paper carrying accurate valuation, it remained inadmissible in evidence and no decree could be passed on the basis thereof. It would be appropriate to reproduce the document in entirety :- Rs. 300.00 (Rupees three hundred only) 2 Rs. House No. 2648 Churi walan, Delhi-6. Dated-21st September, 1970. Due Date- 20th September, 1971. After 365 days (Three hundred and sixty-five days) I, promise to pay to Shiv Kumar Gupta, son of Lala Ramjidas,2648Churiwalan, Delhi, Rs. 300.00 which I have received in cash to-day. Thumb impression Hundi seen, L. Thumb impression of Perma and accepted after hear- Nand, Darji son of Ram ing.Gopal, Caste Brahman, Delhi. Perma Nand. The learned counsel for the petitioner contends that the court below has erroneously construed the document as a promissory note and that in any event the plaintiff had the choice within the meaning of section 17 of the Negotiable Instruments Act, 1881, to obtain relief by pleading that the document was a hundi. Reference has been made to sections 4 and 5 of the said Act. Those provisions as well as section 17 of the Act may he noticed :-