KADIR MOITHIN PULAVAR Vs. PANDURANGA NAIDU

JUDGEMENT

(1.) The suit was for Rupees 974-1-11 being the principal and interest due by the defendant on account of dealings carried on with plaintiff from January 1917 to. 22 August, 1926 on which date the balance was struck. To save limitation the plaintiff relied on an entry by the defendant dated 22 August, 1926 in plaintiff's account book which runs as follows. "This sum of; Rs. 800-11-3 will be paid by me immediately." The debt was denied and various defences raised, but the suit was dismissed on the preliminary point that the entry relied on to save limitation being a pronote and not being stamped, was inadmissible and hence the suit was-barred by limitation. This Civil Revision Petition has been filed against that order. The learned Subordinate Judge has also discussed the contention that the entry is an acknowledgment under Art. 1, Schedule 1, Stamp Act. 1 agree with him that the proviso to that article clearly takes this entry out of that definition. He has, however, held that it is a pronote but he has failed to deal: with the point raised before me that the j payee is not named. The two cases; which he quotes, Muthu Sastrigal V/s. Viswanatha Pandara Sannadhi AIR 1914 Mad 657 and Karuthappa Bowthan V/s. Moideen Sahib (1913) 36 Mad 370, are both cases where the payee was named and so are not relevant to the. point in issue.

(2.) Two cases directly in point are quoted for the petitioner. Lala V/s. Bhaga (1901) 3 Bom LR 699 (FB) where the question arose whether an. entry of this sort which had been stamped with a one anna stamp as a pronote, was properly stamped and whether it was not to be stamped as a bond. The learned Subordinate Judge who referred that matter in a note of considerable length and interest quoted a number of rulings, and concluded that the case law did not afford much help. He expressed no opinion. The Pull Bench in a judgment of 3 lines which gives no reasons held that the document was a bond and should be stamped as such. Although the actual question was whether the document was sufficiently stamped, this depended on its nature which is the chief point here. The other case is Emperor v. Kallu (1903) AWN 174 where it was held that the document was not a pro note, the payee not being named. In an earlier Bombay case, Devahand V/s. Hirachand Kumaraj (1889) 13 Bom 449 (FB) a Pull Bench case alluded to in Lala V/s. Bhaga (1901) 3 Bom LR 699 (FB), the same point came up but the matter was decided on another ground that the document having been admitted in evidence, its validity with regard to the stamp on it could not be questioned. A case which is also in petitioner's favour is Ghandraprasad V/s. Varajlal . There also the payee was not named and the Court held that it was not a pronote but that it would fall within Section 25, Clause (iii), Contract Act, 1872, if it were proved that at the time when defendant signed the khata he was one against whom the debt might have been enforced but for the law of limitation. For the respondent is quoted Bam Das v. Inayat Ullah AIR 1923 All 297. The exact words of the document are not quoted in the judgment, but from the summa y given it would appear that the plaintiff was named as the payee. The other eases quoted on either side are not really relevant. In Mulji Lala V/s. Lingu Makaji (1897) 21 Bom 201 (F.B.), (mentioned by the lower Court) an entry like this was held to be an acknowledgment, but there was no promise to pay, which, as observed above, takes the present document out of the definition of an acknowledgment. In Mahadeo Kori V/s. Sheoraj Bam Teli A.I.R. 1919 All 196, the payee was named, but it was held that as there was a stipulation to pay interest it fell under Art. 5 (c), Sen. 1, Stamp Act of 1899. Ghandiak v. Ananta Lal Damani AIR 1924 Mad 352 also is not relevant as it deals with the question of intention which only arises if the document can otherwise come under the definition of acknowledgment in Art. 1, Schedule 1.

(3.) All the direct authorities are in petitioner's avour and there is none quoted which supports respondent. The lower Court has failed in considering, whether this document is a pronote or not, to deal with the most important point whether the payee is named. The penalty of having the suit dismissed because the document is not stamped is a very severe one and the ends of justice certainly require that if the document is neither a pronote nor an acknowledgment the plaintiff should have a chance of stamping it properly and putting it in as evidence. If this document is neither a pronote nor an acknowledgment I should have been inclined to regard it, as contended for by the petitioner's pleader, as either an agreement or a memorandum of agreement. In the somewhat similar case in Lala V/s. Bhaga (1901) 3 Bom LR 699 (FB), the Full Bench held that such a document was a bond. I leave this point to the decision of the lower Court. The decree is set aside and the suit restored to file and plaintiff should be allowed an opportunity of stamping the document correctly. If he does so within the time allowed him by the Court the trial should proceed on the other issues. Costs of this Civil Revision Petition will be costs in the suit. (This petition having been set down to be spoken to this day, the Court made the following order: ORDER