GOVIND SINGH Vs. BIJAY BAHADUR

JUDGEMENT

(1.) The plaintiff-applicant brought the suit, out of which this revision has arisen, for recovery of Rs. 506-6-0, alleged to be due under a pro-note, dated 6 January 1925, executed by the defendant. The plaint recites that, in consequence of the defendant's fraudulent conduct, a stamp of only one anna was affixed on the pro- note which, on that account, is inadmissible in evidence, and that the plaintiff claims to recover on foot of the loan transaction independently of the pro-note which he relies on for a collateral purpose. The plaint, as drawn up, is more capable of the interpretation that, according to the plaintiff, the loan had been advanced on 6 January 1925, though, it is not altogether inconsistent with the case that the pro-note was executed in lieu of an old debt. The plaintiff started to establish the case of cash consideration having been paid on the execution of the pro-note referred to; but his own witnesses, under the circumstances which it is not necessary to go into, gave away that case and disclosed, what has been found by the Court below, that a pro-note had been executed by the defendant in favour of the plaintiff in 1923 and that, in lieu of the principal and interest due under that pro-note, the fresh loan transaction of 1925 was entered into between the parties. We must, therefore, accept, for the purpose of this case, as found by the Court below, that the defendant was indebted to the plaintiff for a sum of Rs. 349. and that his claim for that amount was within time on 6 January 1925, when a fresh pro-note was executed. A receipt of even date was also executed by the defendant and was duly attested by two witnesses. The lower Court (Small Cause Court at Allahabad) dismissed the suit on the ground that the claim to recover the debt due under the pro-note of 1923 was barred at the date of the present suit, which was brought on 5 January 1928, and that limitation was not saved by any acknowledgment of that debt inasmuch as the pro-note,dated 6-1-1925, contained no acknowledgment of the debt of 1923 but of a debt supposed to have been advanced on 6-1-1925.

(2.) I am of opinion that the plaintiff-applicant is entitled to succeed as regards the principal debt at least on the strength of the acknowledgment contained in the receipt dated 6 January 1925. I ignore the pro-note altogether for want of proper stamp. There can in my opinion, be no question as regards the admissibility of the receipt in proof of an acknowledgment, not as saving limitation for the older debt of 1923, but as the foundation of claim to enforce liability acknowledged thereunder.

(3.) The acknowledgment of a debt implies a promise to pay. Such an acknowledgment is required to bear a stamp of one anna under Sch. 1, Art. 1, Stamp Act. Where there is an express promise to pay, the document cannot operate as an acknowledgment, but should be stamped as a bond. In so far, therefore, as a document contains a mere admission of liability, a stamp of one anna is quite sufficient: but, in so far as it may contain a promise to pay, it will be inadmissible, being a bond to that extent. The receipt before us, as I construe it, is a clear acknowledgment of the defendant being a debtor to the plaintiff to the extent of Rs. 349 under a pro-note, dated 6 January 1925, which, of course, has to be ignored as a piece of evidence. The receipt is to the effect that Bijay Bahadur Singh, the defendant, borrowed Rs. 349 under a pro-note, dated 6 January 1925, at 1/4 per cent per mensem. The portion of the receipt relating to the interest amounts to an agreement to pay interest, and is, to that extent, inadmissible for want of proper stamp duty, as if it were a bond; but the stamp of one anna, which is affixed to the receipt, would cover the other part of the receipt which acknowledges the loan of Rs. 349.