WEST COAST ELECTROPLATING CO LTD Vs. SREEDHARAN

JUDGEMENT

(1.) THE plaintiff sued for money due from the defendant towards the charge for building bus-body for the defendant. THE amount contracted for was Rs. 9,270/- inclusive of sales-tax. THE suit was based really on an invoice. But in evidence, the agreement dated 6th January, 1968 entered into between the parties on delivery to the defendant the bus-body was also put in. THE court below construing the agreement as a bond, has imposed stamp duty, and penalty on it payable by the plaintiff. THE plaintiff's case is that the suit is not based on the so called bond, but only on the invoice. Even otherwise, it is difficult to treat the document as a bond. Under English law a bond is a deed wherein a party acknowledges himself to be bound or indebted to another in a certain sum of money. It is sometimes called an obligation in a special sense of the word, and the parties are called respectively, obligor and the obligee. "the distinction between an obligation under a 'bond', and an obligation under an ordinary contract is that a breach of an obligation under a bond does not 'sound in damages' whereas 'damages' is what one who breaks an ordinary contract is subjected to. " (33 Indian Cases 920 - Collector of rangoon", v. Maung Aung Ba ). In the document under consideration there is provision for recovery of damages in the event of a breach. THEre is also the further aspect that "no document can be a bond within the relevant section, unless it is one which by itself creates an obligation to pay the money. " (Hira lal Sircar v. Queen Empress - ILR. 22 Calcutta 757 ).) In the present case, the obligation has already been incurred by the work of body-building done by the plaintiff. THE obligation is not created by the document itself. "in every case one has to look at the intention of the parties and if the intention of the parties is not to extinguish the old promissory notes but to keep them alive and the document subsequently executed only provides for the method of payment and for reduction of interest under certain contingencies, such a document is merely an agreement, not a bond within S. 2 (5 ). "air. 1943 Allahabad 218 - R. S. S. S. Sabha v. Raj narain) So also in the present case, the document provides only for the mode of payment to the obligation already incurred. "the essential feature for constituting a document as a bond is that there must be an express obligation to pay. No such obligation can be inferred from a mere acknowledgment of the balance. An implied obligation cannot therefore convert an acknowledgment into a bond. (Dewan Chand v. Punjab & Kashmir Bank - AIR. . 1937 Lahore 220) On a consideration of the features of the document dealt with in the above decisions, and applying the same to the document before me, I am led to the conclusion that the document presents the features of an agreement rather than a bond. THE order is, therefore, set aside, and the matter will be dealt with afresh on the lines suggested above. . .