D. ROZARIO Vs. HARIBALLABH ONKARJEE TRIVEDI

JUDGEMENT

(1.) THE first point in this case is whether the instrument (P. 1) is a bond or a promissory note as defined in Section 2, Clauses (5) and (22) respectively, of the Indian Stamp Act. Undoubtedly, the instrument in question would have been a promissory note but for the fact that it was attested by a witness. The note in. question is not payable to order or bearer, and, in those circumstances, I think the lower Court was correct in treating it as a bond.

(2.) THE next question is whether, in spite of the silence of the bond as to interest, there was any agreement to pay interest at Rs. 2 per cent per mensem.

(3.) ON a third point, however, I find it necessary to remand the case to the lower appellate Court. I saw cause to admit in this Court a memorandum (A.1) professing to come from the plaintiff-non -applicant to the defendant-applicant, dated 11th August (year not stated) asking for payment of certain money. This letter, it is alleged on behalf of the applicant, shows that the debt in suit was repayable by instalments. On the other hand, the plaintiff non-applicant has filed an affidavit to the effect that this letter relates to a previous loan of Rs. 10 taken in the year 1922; the non-applicant's statement in this connexion has been recorded by me and, on the other hand, the applicant has sworn before me that he never took any such loan of Rs. 40 in 1922 or in any other year. This is a matter which, in my opinion, should be elucidated by taking further pleadings and, if necessary, evidence in the lower Court and I remand the case to that Court for ,a finding on the following issue: Did the applicant Rozario take a loan of Rs. 40 from the non-applicant Hariballabh Onkarjee Trivedi in 1922 or in any other year and, if so, does the memorandum (N. P. 1) refer to the said loan of Rs. 40 or to the loan evidenced by P. 1?