LINGAM NARAYAN DAS Vs. PUNIA DAS

JUDGEMENT

(1.) THIS is a plaintiff's application under Section 25 of the Provincial Small Cause Courts Act against the judnnent of the learned Small Cause Court Judge, Berampur, dismissing his suit. The plaintiff filed a suit against ihe defendant for realisation of Rs. 154 -10 -0, basing his claim on a promissory note dated 28 -5 -55. The defence inter alia was that the defendant gave his thumb impression on a blank piece of paper under threat & coercion for the execution of a Muchalika. The learned Small Cause Court Tudge dismissed the suit on two grounds: (i) The attestor and the scribe of the document are both interested in the plaintiff and hence they cannot be believed. (2) The name of the payee is not mentioned in the promissory note itself. Therefore in terms of Section 4 of the Negotiable Instruments Act, it cannot be held to be a promissory hole.

(2.) MR . N.V. Ramdas, learned counsel appearing on behalf of the petitioner, submitted that the onus was wrongly put on the plaintiff when the defendant had admitted the execution on a blank sheet of paper. His next contention was that the defendant did not prove that there was coercion and threat, much less the stamp paper was for a Muchalika. I heard this case on 24 -9 -57 when I allowed Mr. Ramdas sometime to find out if there is any reported decision for the contention; even if the word 'you' is used in a document, it would all the same amount to a promissory note within the meaning of the Negotiable Instruments Act. Mr. Ramdas today (1 -11 -57) tried to rely upon two decisions, one or the Bombay High Court reported in Bhagwandas v. Chhaganlal, AIR 1944 Bom 235(1) and the other of the Allahabad High Court reported in Sushil Chander v. Wali Ullah, AIR 1941 All 158. In the Bombay case, their Lordships were concerned with a document which was insufficiently stamped and it was admitted to be a pronote. The question therefore for consideration was whether at a later stage it can be rejected as a promissory note being insufficiently stamped at the inception. Their Lordships held that this cannot be done. Similarly in the Allahabad case it was a promissory note insufficiently stamped. Mr. Justice Dar held that the main question in deciding whether a document is a promissory note is to consider not whether the instrument is negotiable or not, though ordinarily negotiability of an instrument is a good test to determine whether a document is a promissory note Or not; but to consider whether in substance and in primary intention of the parties the document was or was not a promissory note and whether it contained necessary recitals or whether it was intended to record a different kind of transaction altogether Section 2(22) of the Stamp Act and Section 4 of the Negotiable Instruments Act, make it obvious that a document which contains a promise to pay on a contingency will not be treated as a promissory note For the purposes of the Negotiable Instruments Act but may be regarded as such for the purposes of the Stamp Act.