SHIV RAJ Vs. RAM SWAROOP

JUDGEMENT

(1.) IN 'bahi' of the plaintiff respondent, there is an entry in the following words: - ********* This is signed by the defendant-appellant but does not bear any stamp. An objection was raised before the learned District Judge, Tonk, where the suit on the basis of this Khata was pending, that the document which is a pronote, being unstamped, is not admissible in evidence.

(2.) LEARNED District Judge considered the intention of the parties and after referring to certain decisions held that the intention of the parties was to execute a Khata in the Bahi of the plaintiff and it was not a pronote, so as to say that it is inadmissible in evidence on account of being unstamped. This decision has been challenged in this appeal by the defendant-appellant. The promissory note has been defined under Section 4 of the Negotiable Instruments Act, 1881, is as under:- "s. 4. A "promissory note" is an instrument in writing (Not being a bank note or a currency note) containing an unconditional undertaking, signed by the maker, to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument. ILLUSTRATIONS A Signs instruments in the following terms:- (a) "i promise to pay B or order Rs. 500" (b) "i acknowledge myself to be indebted to B in Rs. 1,000/- to be paid on demand, for value received. " (c) "mr. B, I O U Rs. 1, 000. " (d) "i promise to pay B Rs. 500 and all other sums which shall be due to him. " (e) "i promise to pay B Rs. 500, first deducting thereout any money which he may owe me. " (f) " I promise to pay B Rs. 500 seven days after my marriage with C. " (g) " I promise to pay B Rs. 500 on D's death, provided D leaves me enough to pay that sums. " (h) " I promise to pay B Rs. 500 and to deliver to him my black horse on 1st January next. "

(3.) ANOTHER case relied upon by the plaintiff respondent is Chiranji Lal V. Ramnath (4 ). The document in this case was recorded by the debtor in the account book of creditor, and was based on previous accounts at a certain rate of interest. Considering the intention of the parties, it was held that it was an agreement and not a promissory note, though containing the terms to pay and being insufficiently stamped, it would be used in evidence on payment of penalty. The intention in this case was inferred from the evidence that the parties had money dealings for a long time and balance was struck from the previous accounts and it was after striking the balance that the document was written in the account was book of the creditor. The primary intention of the parties was held to be to strike a balance of the previous account and the rate of interest was recorded only to save any dispute about the rate. It was also stamped according to the sum chargeable on an acknowledgment at that time.