N M R NAGAPPA CHETTY Vs. VAAR FIRM

JUDGEMENT

(1.) This is a suit filed by the plaintiffs for the recovery of Rs. 17,919-11-1 with costs and interest due in respect of dealings between the plaintiffs firm and the 1st defendant. The 2nd and 3 defendants are the sons of the 1 defendant and they are members of a joint undivided Nattukottai trading family.

(2.) The only point now taken in appeal is whether Ex. E is an acknowledgment of liability which requires to be stamped and therefore ought not to have been admitted in evidence. There is no other defence to the plaintiffs action. The learned Chief Justice who tried the case overruled the plea that Ex. E requires a stamp and admitted it in evidence. We think that we cannot in appeal go into the question whether it was rightly or wrongly admitted. Section 36 of the Stamp Act is clear. It says that, where an instrument has been admitted in evidence such admission shall not, except as provided by Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument was not duly stamped. Section 61 does not touch this case where a document has been admitted by the trial Judge in evidence, we do not think that it is open in appeal which is merely a continuation of the same proceeding to question that admission. I need only refer to Sitaram V/s. Ram Prosad Ram (1913) 18 CWN 697 and Ahmad Raza V/s. Abid Hussain (1916) ILR 38 A 494 (PC). As regards any penalty to be recovered the law provides the proper procedure. It is open to the Appellate Court to send the document on for the proper collection of penalty. I do not think the letter is one falling within the definition of an acknowledgment. It is written in reply to a letter sending a statement of account, Ex. F, and states that the account sent is correct. Galstaun V/s. Hutchison (1912) ILR 39 C 789 and Surjitmull Murlidhar Chandick V/s. Ananta Lal Damani (1923) ILR 46 M 948 : 45 MLJ 399 are in point. There are no merits in this appeal. It fails and is dismissed with costs. Krishnan, J.

(3.) In this case the plea taken in appeal is that the claim is barred by limitation because it is contended the acknowledgment relied on, Ex. E, should not have, been admitted in evidence as being unstamped. It is not now denied that, if admitted, Ex. E would be a proper acknowledgment under Section 19 of the limitation Act to save the bar of limitation. It was originally pleaded by the defendant that it was not such an acknowledgment but that argument hasnot been urged before us. The sole question argued before us is that Ex. E should not have been admitted as it is not stamped. It was contended that under Art. 1 of the first schedule of the Stamp Act it requires a stamp of one anna and under Section 35 it could not have been admitted even on payment of penalty and the document should have been kept out of the record. Even if we assume for a moment that this argument is correct, such an argument as that could not be addressed to the Appellate Court, the document having been already admitted in evidence by reason of Section 36 of the Stamp Act. That section clearly bars such an attempt in appeal to keep out a document which has already been admitted and acted on by the Trial Court. Apart from that I am inclined to hold that the document does not really require a stamp at all, for it is not an acknowledgment which in the words of Art. 1 was obtained in order to supply evidence of the debt ; for there is plenty of other evidence on the plaintiffs side--their account- books. This was clearly an ordinary acknowledgment so that the parties might not subsequently dispute the correctness of the amount which had been arrived at as the balance due on the particular date. It was not a document which was required by the plaintiffs for the purpose of proving the existence of the debt itself. That being so, the plea taken cannot succeed. On the merits the defendants have no kind of defence at all. In these circumstances I agree that this appeal fails and must be dismissed with costs.