GOVINDA Vs. HARIBHAU

JUDGEMENT

(1.) STAPLES , A.J.C. 1. This is an application for revision of the judgment of the Small Cause Court, Khandwa, decreeing the claim of the plaintiff non-applicant for Rs. 544. The suit was brought on a promissory note dated 20th January 1928. Admittedly the note was not sufficiently stamped, and the plaintiff therefore said that he fell back on his original cause of action, namely, for money had and received.

(2.) AT the hearing there was a discussion whether the note, which was produced in evidence as Ex. P-1, was a promissory note or a bond. It purports to be a promissory note on a printed form, but it is attested. On the other hand, it does purport to be payable to order and therefore it is not a bond according to Section 2 (5) (b), Stamp Act. I would refer in this connection to Bankidas v. Tanabai . As it is a promissory note, it cannot be validated according to Section 35 (a), Stamp Act.

(3.) I am clearly of opinion that the promissory note cannot be used as an acknowledgment within the meaning of Section 19, Lim. Act, and in this connexion I would refer to Mulji Lala v. Lingu Mahaji (1897) 21 Bom 201 (FB). It seems clear that, if a promissory note is to be inadmissible in evidence because it is insufficiently stamped, it must be inadmissible in evidence also as a written acknowledgment. It is not correct to say that to use the note as an acknowledgment is to use for a collateral purpose; on the contrary, it is akin to the main purpose of the deed itself, which is an acknowledgment of money either due or paid at the time. The learned Counsel for the non-applicants has referred to several cases, in which, though a note has been held to be not admissible in evidence, yet a suit has been allowed for the consideration. That, of course, may be done, and in the present case I am of opinion that a decree for the sum of Rs. 46, advanced in cash may be passed. I have been referred to Udaram Magniram v. Laxman Marwari A. I. R. 1927 Nag. 241, Abinash Chandra v. Nagendra Nath and Kesavaramayya v. Yenkataratanam A. I. R. 1926 Mad. 452.