BINDESARI PRASAD Vs. RAM TAPESHA SINGH

JUDGEMENT

(1.) This application arises from a suit in which the Judge of the Small Cause Court of Ghazipur dismissed the plaintiff's claim. The defendant is said to have borrowed Rupees 300 from the plaintiff's father in 1926 and executed a "sarkhat," but he is said to have paid this amount on 21 July 1929, and on the following day he borrowed a further sum of Rs. 250 adding a note of memorandum on the old document. This note or memorandum formed the basis of the plaintiff's suit, but it was not stamped,, and the Court held that it required a stamp of one anna and was not 1933 admissible in evidence as "it was an acknowledgment." The decision of the learned Judge has been assailed from two points of view. It is said in the first place that the document is either a receipt, in which case it might have been admitted in evidence on payment of a penalty, or else a mere memorandum on which no stamp was necessary. The document in question reads as follows: Dastkhat Ramtapesa Singh: do sou pachas rupiya nagad liya sahi iske alawa hamare zimme aur kuchh baqi nahi hota hai. which may be translated literally: Signed by Ramtapesa Singh : Rs. 250 cash have been taken. Besides this nothing else is due from me.

(2.) I have been referred to the decision in the cases of Bishambar Nath V/s. Nand Kishore (1892) 15 All 56 Udit Upadhya V/s. Bhawani Din (1904) 27 All 84 and Dulmha Kunwar V/s. Mahadeo Prasad (1906) 28 All 436 in which somewhat similar documents have been held to be admissible in evidence without stamps. It is also clear however from these cases that every such document has to be considered on its own merits. Mr. Pandey who has opposed the application has laid stress on the distinction between the receipt as defined in Section 2(23), Stamp Act, and an acknowledgment in Art. 1, Schedule 1 of the same Act. A receipt is given for money received (the words used in the Act are "acknowledged to have been received") and in Clause (b) of Section 35 there is a provision to the effect that where such a receipt is not stamped it may be admitted in evidence against the person who was required to give a stamped receipt; broadly speaking it may be said that it may be admitted in evidence in favour of the debtor against the creditor. An "acknowledgment" on the other hand, is defined in the article referred to as a document written or signed by or on behalf of a debtor in order to supply evidence of such debt, and it is left in the creditor's possession. It does not however contain a promise to pay the debt or any stipulation to pay interest or to deliver any goods or other property. In the case of Ram Das V/s. Inayat Ullah AIR 1923 All 297 a document somewhat similar to the one in suit was held to be an "acknowledgment" as defined in Art. 1, Schedule 1, Stamp Act, and this is the case on which the trial Court has relied. There is no saving clause in the Act to enable an acknowledgment which, requires a stamp and which is not stamped to be admitted in evidence; on behalf of the creditor.

(3.) I am not concerned now with the question of whether the document in this suit contains a promise to pay the debt. In that case it would be much more than, an acknowledgment. It would be a definite contract on the part of the defendant, and would probably be defined as a promissory note, and would certainly not be admissible in evidence; as it is not stamped. What is claimed; on behalf of the applicant is that it is something less than an acknowledgment as defined above, that it is either a receipt or one of those miscellaneous-memoranda which have been referred, to in the decisions which I have quoted.. In all these cases and in the case relied on by the Court the ratio decidendi has, if I am not mistaken, been, the question of whether the document was executed in order to supply evidence of the debt. In the first case-quoted, that of Bishambar Nath v.. Nand Kishore (1892) 15 All 56 the Court was considering whether there had been such an acknowledgment as is referred to in Section 19, Limitation Act, and it was held, that as the document was an ordinary letter which was not written with the express intention of supplying evidence it did not require to be stamped under the provisions of Art. 1, Stamp Act..