Punjab-Haryana High Court
Udey Ram vs Ram Kishan on 7 February, 2000
Equivalent citations: (2000)125PLR179
JUDGMENT V.K. Jhanji, J.
1. This is plaintiffs civil revision directed against order dated 13.6.1996 passed by the Additional Civil Judge (Senior Division), Sangrur whereby writing dated 13.3.1992 has been held to be a bond within the meaning of Section 2(5)(b) of the Indian Stamp Act, 1899 (hereinafter referred to as the Act) and plaint being understamped, penalty of Rs. 9,103.50 has been imposed and the plaintiff has further been directed to deposit Rs.910.35 as duty on the bond, both totaling Rs. 10,014/-.
2. The case of the plaintiff is that the defendant Ram Kishan son of Barkha Ram along with his brother Sukhdev Ram obtained a loan of Rs.37,500/- and a writing dated 13.3.1992 was scribed in Rokkar Bahi of the plaintiff which was signed by the defendant, his brother and the attesting witnesses. According to the plaintiff, the loan was taken by the defendant with an undertaking that he and his brother will bring the agricultural produce to the shop of the plaintiff and the sale produce of crop shall be adjusted towards the loan amount failing which interest shall be charged at the rate of 18 per cent per annum. Plaintiff alleged that since the defendant failed to honour the commitment, he is entitled to recover the principal amount of Rs.37,500/- along with interest. Upon notice of the suit, defendant denied the allegations made in the plaint and the writing dated 13.3.1992. At the stage of evidence, plaintiff sought to produce in evidence writing dated 13.3.1992 scribed in the Rokkar Bahi. An objection was taken by the defendant that writing in question was a bond within the meaning of Section 2(5)(b) of the Act and, therefore, was required to be stamped before admitting it in evidence. Trial Court held the writing dated 13.3.1992 to be a bond within the meaning of Section 2(5)(b) of the Act and directed the plaintiff to deposit a sum of Rs.10,014/- (Penalty of Rs.9,103.50 + Rs.910.35 as duty) failing which the document was to be sent to the Collector for effecting recovery of the amount. Hence, this civil revision by the plaintiff.
3. Notice of this civil revision was to given to the defendant but despite notice, none has put in appearance.
4. The only question for decision in this civil revision is whether writing dated 13.3.1992 is a bond within the meaning of Section 2(5)(b) of the Act. Section 2(5)(b) reads as under:-
Section 2:
(5) Bond includes -
(b) any instruction attested by a witnesses and not payable to order or bearer, whereby a person obliges himself to pay money to another.
5. In order to bring an instrument within Clause (b) of Sub-section (5) to Section 2 of the Act. It must have been attested by a witness; secondly, the amount must not be made payable to order or bearer; and thirdly, it must, contain a distinct agreement by which obliger binds himself to pay. When any of these requisites is absent, the instrument is not a bond. The instrument in question is a Bahi entry whereby defendant has acknowledged receipt of Rs.37,500/- and entry is signed by the defendant, his brother and the two attesting witnesses. In my opinion, the order of the Additional Civil Judge (Senior Division), holding this instrument to be a bond cannot be supported. The Bahi entry though is attested by two witnesses but there is no express obligation to pay the amount mentioned therein. The definition of bond in Clause (b) of Sub-section (5) to Section 2 of the Act requires that a person should oblige himself to-pay money to another. In other words, there must be an express obligation to pay. No instrument can be a bond within the meaning of Section 2(5)(b) of the Act unless it is one which itself creates an obligation to pay money. The document admitting receipt of money in absence of express promise to pay, may be held to be a receipt but not a bond. The writing in question does not show that the defendant had undertaken any obligation to pay. More so, no such obligation can be inferred from mere acknowledgement of the receipt of the amount.
6. Resultantly, this civil revision,is allowed, order under revision is set aside and the Additional Civil Judge (Senior Division), Sangrur is directed to proceed in accordance with law.