MANAKSHAH 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 plaintiffs 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 l,smt. 2008, corresponding to 31st of Oct. , 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 accounts-book for the said amount and promised to pay interest on the said amount at Re. 1 per cent per mensem. Thereafter, on Magh Vad 6 Svt. 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 dis 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 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 promise to pay interest, the entries came within the ambit of agreement and that they are admissible in evidence on payment of stamp duty, as provided in Schedule I Art. 5 of the Stamp Act. together with the penalty, as provided in sec. 35 of the same Act. It is against this order that the defendant has came here in revision

(3.) ON the other hand, we may refer to a number of cases in which it has been held that a mention about the rate of interest in an acknowledgment brings it within the proviso of Art. I and further takes it into the ambit of Art 5 of the Stamp Act. In Prahlal Prasad vs. Bhagwandass 7 the plaintiff had sent to the defendant a statement of account. The defendant endorsed the acknowledgment and added "interest at annas -/l2/- per cent per mensem. It was observed following earlier decisions of the same High Court that "in our view it is impossible to hold that the stipulation as to interest can be interpreted otherwise than as a promise to pay interest in the future at the named rate whether the promise was in express words such as "i promise to pay" or a matter of necessary implication is immaterial. "