LAWS(CAL)-1973-8-4

SIB NARAYAN MUKHERJEE Vs. JANAK UPADHYA

Decided On August 28, 1973
SIB NARAYAN MUKHERJEE Appellant
V/S
JANAK UPADHYA Respondents

JUDGEMENT

(1.) The plaintiff is the appellant in this appeal which arises out of a suit instituted against the defendant-respondent for recovery of a sum of Rs. 3,486/-given on account of loan. The plaintiff's case is that the defendant being in urgent need of money for the purpose of carrying on his business borrowed a sum of Rs. 3,000/-from the plaintiff on 26-6-1956 agreeing to pay off the same with interest at the rate of /8/ annas per cent per month on demand and executed a pronote for the same in favour of the plaintiff on the said date. In spite of demand and in spite of presentment of the handnote in suit, the defendant did not pay the plaintiff anything towards the dues of the hand-note in suit. Hence the suit was instituted to recover the sum of Rs. 3,486/- including interest from the defendant. The defendant in his written statement pleaded that as he was in urgent need of money in connection with the marriage of his adopted son, the plaintiff paid only Rs. 1,500/- and got a pronote for Rs. 3,000/-executcd under influence and coercion. The defendant further prayed that he should be allowed to pay the decretal dues, if any decree is passed at all, in instalments. The suit was decreed by the learned Subordinate Judge at Asansol. It was contended before the Subordinate Judge by the defendant that the pronote cannot be admitted in evidence in view of Section 12 read with Section 35 of the Indian Stamp Act (hereinafter referred to as the Act) since two of the revenue stamps on it had not been defaced with the result that the pronote is an insufficiently stamped document. The learned Subordinate Judge held inter alia that although the document in question was not admissible in view of the mandatory provision of Section 12 read with Section 35 of the Act, the fact of the execution of document having been admitted it need not be proved even though the document in question is not admissible. He further held that in view of the pleading of the parties the plaintiff would be en-tilled to a decree.

(2.) On an appeal the learned Additional District Judge allowed the appeal and dismissed the suit. The learned Additional District Judge held that as the plaintiff in the present case had no independent cause of action, the defendant's admission of execution of the pronote cannot help the plaintiff in any manner. He further held that if the admission of the defendant is to be used against him such admission should be taken in its entirety and a part of it cannot be used against him.

(3.) On a second appeal the learned Counsel for the plaintiff-appellant contended that in the present case the pronote being Ext. 1 has been admitted in evidence without any objection. Section 36 of the Act precludes the respondent from raising any objection against the admission of the document at any stage on the ground that -such document has not been duly stamped. Reliance has been placed in this connection upon the decision of the Supreme Court in Annamalai Chettiar v. Vcerappa Chettiar. The learned Counsel for the respondent contended that the document in question was admitted in evidence without objection and there was no judicial determination of the admissibility of the evidence and hence it is open to his client to call into question the admissibility of the evidence of (he said document.