KUNDURU SEETHAMMA Vs. NAMANA NAGESWARA RAO

JUDGEMENT

(1.) This revision petition has been preferred by the petitioner against the Judgment in SC.No. 12 of 1993 on the file of the Principal District Munsif, Bhimavaram, West Godavari District. .

(2.) The plaintiff is the petitioner herein. The suit was filed by him to recover an amount of Rs.1,537.00being the principal and interest due thereon on the basis of promissory note Ex.A1 dated 27-11-1990. The defendant contended that Ex.A1 is not supported by any consideration. The plaintiff examined PWs.1 and 2 and they proved the execution of the promissory note Ex.A1. The lower Court ultimately held that the plaintiff advanced the amount and simultaneously executed Ex.A1 which forms part of the same transaction. This finding is not challenged. However during the course of arguments, the learned Counsel for the defendant-Judgment Debtor contended that Ex.A1 is insufficiently stamped. The amount advanced by the plaintiff is Rs. 1200.00. However, on the promissory note 0.20 ps revenue stamp was affixed. As per the Stamp Act 0.20 ps. (sic 0.25 ps.) revenue stamp is not affixed. Taking this fact into consideration and also the ratio of the decision laid down in Bollam Venkataiah v. Venumuddala Venkata Ramana Reddy, AIR 1985 AP 26, the lower Court dismissed the suit. Aggrieved by the said judgment, present revision has been filed.

(3.) The learned Counsel for the revision petitioner submits that he did not dispute that the Ex.A1 is insufficiently stamped. However once the document is marked as exhibit and tendered in evidence it is not open to the parties to raise any objections. He relied upon the decision of this Court in Pilla Narasimhaswamy Patrudu and Ors. v. Bank of Baroda, AIR 1982 AP 240, to support his contention. There cannot be any doubt on the proposition of law set out in the above decision. This ratio is relevant in support of other documents. But in the present case, the document in question being a promissory note, the reasoning given in the above decision is not applicable. The lower Court held that it is not disputed that loan is advanced simultaneously with the execution of a promissory note and the transaction for forms part of the same action and the plaintiff can sue only on the promissory note. The learned Counsel for the defendant relied on the decision in Bollam Venkataiah v. Venumuddala Venkata Ramana Reddy, (supra), which has a direct bearing upon the facts of the instant case. In this decision the Judgment of the Full Bench of this Court in Lothamasu Sambasiva Rao v. Thadwarthi Balakotaiah, AIR 1973 AP 342, is followed. The learned Principal District Munsif by relying on the judgment in Bollam Venkataiah v. Venumuddala Venkata Ramana Reddy (supra) wherein it was held that a suit based on not duly stamped pronote is not maintainable and dismissed the suit. It is well settled that when the promissory note is insufficiently stamped it could not be looked into for any purpose. The Full Bench held : "A plaintiff can lay an action for recovery, of the amount advanced by him basing on the original cause of action where the suit negotiable instrument becomes inadmissible in evidence under Section 35 of the Stamp Act provided there is an allegation in the plaint and proof in evidence about the fact that the promissory note did not incorporate all the terms of the contract of loan and that it was executed as a conditional payment or a collateral security. If the instrument embodies all the terms of the contract and the instrument is improperly stamped no suit on the debt will lie. It will be barred by Section 91. Evidence Act and Section 35 of the Stamp Act. In such a case where there is an express contract and the document is hit by the provisions of Section 35, Stamp Act and Section 91 Evidence Act, Section 70 of the Contract Act cannot be invoked on the theories of implied promise money had and received, quasi contract and just and reasonable or unjust enrichment or any other equitable doctrine."That being so, the lower Court was right in not agreeing with the plaintiff on this point.