MANAK SHAW Vs. TARACHAND

JUDGEMENT

(1.) THIS is an application in revision by the defendant against the order of the District Judge, Pratapgarh, dated the 7th of December 1953 permitting the plaintiff unstamped document to be admitted in evidence on payment of penalty.

(2.) IN order to appreciate the point in Issue, it would be proper to narrate the facts in brief. The plaintiffs Tarachand and others brought a money suit against the defendant-petitioner on the basis of certain entries in their account-books. It was averred by them that on Kati Sud 1 Samwat 2008 corresponding to 31st of October 1951, the defendant settled with the plaintiffs his account whereby a balance of Rs. 1734/12/- was found outstanding against him. The defendant, therefore, executed a Khata in their account-books for the said amount and promised to pay interest on the said amount at Rs. 1 per cent per mensem. Thereafter, on Magh Vad 6 Samwat 2008 corresponding to 20th of November 1951, the defendant obtained a further loan of Rs. 8001/- at the same rate of interest and made an entry to that effect in the same Khata in his own hand. It was prayed that the defendant having failed to pay up the said loan, a decree for Rs. 11,045/6 with INterest pendente lite and costs be given against him. The defendant traversed the claim and raised several objections, one of them being that both the entries on which the suit was founded showed that they were unstamped acknowledgments, and therefore, they could not be admitted in evidence. The trial court has found that since there was a promise to pay interest, the entries come within the ambit of agreement and that they are admissible in evidence on payment of stamp duty, as provided in Schedule 1 Article 5 of the Stamp Act together with the penalty, as provided in Section 35 of the same Act. It is against this order that the defendant has come here in revision.

(3.) LEARNED counsel for the applicant has drawn our attention to another Pull Bench case of the Allahabad High Court in Ram Prasad Ram Kumar v. Parshottam Halwai, AIR 1933 All 256 (I ). In that case, there was an acknowledgment of debt and above that acknowledgment, there was an entry in that book to pay interest. It was held that it was a mere acknowledgment of debt and stamp duty was to be paid only as such. It may be pointed out that this case does not help the petitioner because the learned Judges were of opinion that the entry containing the rate of Interest written above the acknowledgment was not in the handwriting of the debtor, nor was it signed by him and, therefore, they were of opinion that it was possible that the creditor himself might have written it out and the debtor may have had no information at all if there was a stipulation for payment of interest, It is obvious that the learned Judges did not consider the condition about payment of interest as integral part of the document sued upon and it was for that reason that they held it to be an acknowledgment. , This does not mean that the learned Judges would still have held it to be an acknowledgment if the condition about the payment of interest were included in the acknowledgment itself.