GOVIND RAM PALIWAL Vs. RADHA MOHAN

JUDGEMENT

(1.) REGULAR Suit No. 33 of 1964 has been filed by the applicant Govind Ram Paliwal against the opposite party for the recovery of Rs. 18, 300/- on the basis of several Hundis. One of the pleas, on which the suit has been contested is that the Hundis are not duly stamped and as such are inadmissible and the certificate granted by the Collector under Section 32 (3) of the Indian Stamp Act, after the defi ciency in stamp duty has been made good, could not make the Hundis admissible. The objection has been disposed of by the IV Additional Civil Judge, Agra as a prelimi nary issue under Issue No. 4. The trial Court held that the Hundis in suit were in admissible for want of proper stamp duty and that the inadmissibility could not be cured by the certificate of the Collector pur ported to have been given under Section 32 of the Stamp Act (hereinafter referred to as the Act). Aggrieved by the finding of the trial Court, the above revision was filed by the applicant. The revision was allowed ex parte by Hon'ble Takru, J., by his order dated 25th September. 1968. The opposite party Radha Mohan thereafter applied that the ex parte order be recalled and the revi sion restored to its original number. The application purports to have been given under Chapter IX Rule 17 (2) Rules of the Court and under Order 47, Rule 1 read with Section 151, Civil Procedure Code. As Hon'ble Takru, J., had retired by the time the application for setting aside the ex parte order came up for hearing, the application was disposed of by Hon'ble Misra, J., who by his order dated 30th April, 1969 set aside the ex parte order and restored the case to its original number. The revision thereafter came up for final hearing before Hon'ble K. S. Asthana, J., who was pleased to refer the case to a larger Bench. There after the revision application was listed before a Division Bench of this Court con sisting of Hon'ble Jagdish Sahai and B. D. Gupta, JJ. Before the Division Bench, reli ance was placed by the applicant on the case of Girdhari Das v. Jagannath, (1881) ILR 3 All 115, whereas opposite party plac ed his reliance on the case of N. D. Errana v. A. Modappa, AIR 1963 Andh Pra 457. It was also contended by the counsel for the opposite party that the case of Girdhari Das (Supra) was no longer a good law in view of the change made in the statutory provi sion of the Stamp Act. The Division Bench thought it proper that as Girdhari Das's case was a Division Bench case, this revi sion should be heard and decided by a Full Bench. It accordingly recommended for the constitution of a Full Bench, that is how this revision has come to us.

(2.) IT is not disputed that the docu ments on the basis or which the suit is filed are bills of exchange. It is also admit ted that the bills of exchange were insuffi ciently stamped and that the deficiency in stamp duty has been paid and the Collector has made an endorsement to that effect on the back of each Hundi. The only point on which we are addressed by the learned counsel for the applicant is that the certi ficate by the Collector in respect of the Hundis in suit after the deficiency in stamp duty has been paid, is admissible in evidence and the finding of the Court below is erro neous in law. Reliance has been placed by the learned counsel for the applicant on (1881) ILR 3 All 115, wherein it was laid down by a Bench of this Court that:

(3.) THE case of Dattatraya Moresh-war v. The State of Bombay, AIR 1952 SC 181 is also relied upon in support of the contention that the provisions of a statute creating public duties are directory. Reliance is also sought on the following observations made therein: