NAND BEHARI MALL Vs. E B SMART

JUDGEMENT

(1.) Heard the learned counsel for the appellant. The learned counsel for the appellant advanced two arguments in the present appeal. The suit was based against the appellant on the basis of a writing by him on the back of a pronote executed by the another defendant in favour of the plaintiff. According to that note the appellant guaranteed the payment of the plaintiff, in case the person executing the pronote failed to pay. Both the Courts below have decreed the suit against the present appellant as well as the principal debtor. The argument of the appellant was that he was merely a guarantor and his liability would start only after the principal debtor failed to pay the amount. The second argument of the learned counsel for the appellant was that the endorsement made by the appellant on the back of the pronote amounted to either an indemnity bond or a surety bond, which will be covered by Articles 34 and 57 of the Schedule I of the Stamps Act,. Both of these articles attract the payment of stamp duty as bond covered by Article 15 of the said Schedule. As no stamp duty was paid the aforesaid endorsement was wholly inadmissible in evidence and was hit by Section 35 of the Stamps Act. Let the second argument be decided first. So far as the argument is concerned, it is not disputed that the aforesaid endorsement has been used by the parties in explanation and cross-examination, and has been admitted in evidence. According to the Learned counsel for the appellant the admis sion of the document in evidence was illegal and erroneous. I am not prepar ed to accept that argument in view of Section 36 of the Stamps Act. Once a document has been admitted in evidence the objection relating to the deficiency in Stamp is not available to the party objecting to its admission "on the ground of insufficiency of Stamp Duty". In Jaher Chand and others v. Pukhraj Suraha, A. I. R. 1961 S. C. 1655, it was held that once a document was admitted in evidence and used by the parties in examination and cross- examination of witnesses Section 36 of the Stamp Act came into operation. The Learned counsel for the appellant relied upon the case of Ram Rattan v. Bajrang Lal and others, A. I. R. 1978 S. C. 1393. In that case there was an objection to the admissibility of that document of the ground of it being deficiently stamped. The trial Court ordered the objection to be decided later. It Was, however, never decided. Under the aforesaid circumstances the Supreme Court held that the document was inadmissible, and Section 36 of the stamp Act would not be attracted. Inspite of that observation the Supreme Court relief upon it. It held, "in this background while holding that the document Ext. 1 would be inadmissible in evidence as it is not consideration because the trial Court is bound to impound the document and deal with it according to law. " In the present case there was no such circumstances. Consequently the document cannot be ignored by this Court. Under the circumstances this objection of the Learned counsel for the appellants fails. So far as the other objection is concerned, I find that prior to the filing of the suit two letters dated 27-7- 1967 and 24-7-1967 were written to the principal debtor by the creditor for payment of the money. These documents are marked as Exhibits A-i and A-2. Inspite of those letters, no amount was paid by the principal debtor. It was also alleged in the plaint that notice was given to the principal debtor as well as the surety for payment of the money but it was not paid. As such there cannot be the least doubt that the principal debtor failed to pay the amount of pronote inspite of the demand being made. Once the priacipal debtor failed to pay the amount under the pronote, the liability of the guarantor became enforceable. As such the suit was rightly been decreed against the appellant. In the result, the appeal has no force. It is accordingly dismissed. No order as to costs. .