Bombay High Court
Narayan Namdeo Mahanwar vs Santram Narayan Adgale on 18 February, 2020
Author: V. K. Jadhav
Bench: V. K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
905 WRIT PETITION NO.6493 OF 2007
. Narayan S/o Namdeo Mahanwar
... Petitioner
(Orig. Defendant)
Versus
. Santram S/o Narayan Adgale ... Respondent
(Orig. Plaintiff)
...
Mr. V.M. Humbe, Advocate for the Petitioner
Mr. Mukul Kulkarni, Advocate for the Respondent
...
CORAM : V. K. JADHAV, J.
DATED : 18 th February, 2020
PER COURT :-
1. Heard both the sides.
2. The present petition is directed against the order
dated 28.02.2007 below Exhibit-27 and the order dated
28.06.2007 below Exhibit-33 passed by the Civil Judge, Junior
Division, Bhoom in Regular Civil Suit No.335 of 2002. The
petitioner is an original defendant. The respondent/ original
plaintiff has instituted the Regular Civil Suit No.335 of 2002
before the Court of Civil Judge, Junior Division, Bhoom against
the petitioner/defendant for recovery of Rs.25000/- with
interest @ 18% per annum. It has been pleaded by the
respondent/plaintiff that in the month of March 2000, the
petitioner/defendant was in need of Rs.25000/- for the
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marriage of his son and as such taken a hand loan of
Rs.25000/- from the respondent/plaintiff by executing a
promissory note on stamp paper. Since the
petitioner/defendant failed to return the said amount, the suit
for recovery has been instituted. The petitioner/defendant has
strongly resisted the suit by filing his written statement. The
petitioner/defendant has denied almost all the contents and
the allegations. It has also been contended that the said
document is not promissory note and as such, liable to be
impounded with penalty. According to the
petitioner/defendant, the alleged document is on a bond paper
of Rs.100 dated 28.03.2000 and the said document has been
prepared by the respondent/plaintiff showing it as a
promissory note. The petitioner/defendant has filed an
application (Exhibit-27) for impounding of the document. It
has been contended in the application (Exhibit-27) that the
disputed document is not a promissory note and the same is a
bond, which is insufficiently stamped. The respondent/plaintiff
has resisted the said application by filing his Say. According to
the respondent/plaintiff, the said document is a promissory
note in terms of the provisions of the Negotiable Instruments
Act, 1881 (hereinafter referred to as 'N.I. Act') and the same is
not impoundable one as it does not establish any regal right in
respect of any immovable property. By the impugned order
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dated 28.02.2007 below Exhibit-27 in Regular Civil Suit
No.335 of 2008, the learned Judge of the trial Court has
rejected the said application. Thereafter, the
petitioner/defendant has filed the application at Exhibit-33 to
review the order passed below Exhibit-27. By the impugned
order dated 28.06.2007, the trial Court has rejected the said
application. Hence this writ petition.
3. Learned counsel for the petitioner/defendant
submits that the document though styled as promissory note,
it is duly attested by witnesses and executant obliging himself
to repay the amount within stipulated time. Thus, said
document essentially to be a money bond and not a
promissory note. The trial Court should have given directions
for the purpose of impounding the same in terms of Section 33
of the Bombay Stamp Act, 1958. Learned counsel submits that
as per disputed document, it creates an obligation in itself with
an express promise for payment of the amount, and as such in
terms of Section 2 (c) (ii) of the Maharashtra Stamp Act, 1958,
the document will have to be treated as a bond. Learned
counsel submits that the document has fulfilled the
requirement of a bond.
4. Learned counsel for the petitioner/defendant in
order to substantiate his contention placed reliance on the
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following cases;
(I) Tulsa Singh and Others Vs. The Board of Revenue, U.P.
reported in AIR 1971 Allahabad 430 (V 58 C 114)
(II) M/s. Patel Stone Trading Co. Nagpur Vs. Ramsingh
reported in AIR 1975 Bombay 79
(III) K. Mallaya Lachmayya Gop Vs. Prabhakarrao Marotrao
Dhote reported in AIR 1976 Bombay 234
5. Learned counsel for the respondent/plaintiff
submits that in terms of provisions of Section 4 of N.I. Act, the
disputed document is essentially a promissory note, as the
petitioner/defendant has given unconditional undertaking in
the promissory note to pay the sum of certain money to the
bearer of the instrument and the petitioner/defendant has also
signed on it. Learned counsel submits that as these four
conditions are present, the disputed document is essentially a
promissory note. Learned counsel submits that in order to find
out whether the document in question is a promissory note or
not, the intention of the parties at the time of execution of the
document is to be looked into. There is a promise to pay and
that is the substance of the instrument. There is an express
undertaking to pay the amount mentioned in the said
document. Learned counsel submits that in terms of the
provisions of Section 3 of the Indian Stamp Act, 1899, the
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promissory note is not chargeable with any duty. Therefore,
the trial Court has correctly rejected the applications Exhibit-
27 and Exhibit-33. There is no substance in this writ petition
and the writ petition is liable to be dismissed.
6. Learned counsel for the respondent/plaintiff in
order to substantiate his contention placed reliance on;
(I) Mohanlal S/o Nathulal Khirayyah Vs. Haji Shaikh Bashir S/
o Shaikh Mastan reported in (2008) 3 AIR Bom R 27
7. In terms of the provisions of Section 2 (c) (ii) of the
Maharashtra Stamp Act, 1958, the petitioner/defendant claims
that the disputed document is a money bond and the same is
chargeable with duty. According to the petitioner/defendant,
the instrument not duly stamped is inadmissible in evidence
and in terms of Section 34 of the Maharashtra Stamp Act,
1958, the instruments needs to be impounded with penalty as
provided under Section 34 of the Act. The respondent/plaintiff
however claims that the disputed document is a promissory
note not chargeable with duty.
8. Section 4 of the N.I. Act defines a promissory note
and the same is reproduced herein below;
"4. A promissory note is an instrument in writing (not
being a bank-note or a currency-note) containing an
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unconditional undertaking, signed by the maker, to pay a
certain sum of money only to, or to the order of, a certain
person, or to the bearer of the instrument."
9. The definition of promissory note in Section 2 (22)
of the Maharashtra Stamp Act, 1899 is more comprehensive
and in addition to the promissory note as defined in the N.I.
Act, it includes a note promising the payment of any sum of
money out of any particular fund which may or may not be
available, or upon any condition or contingency which may or
may not be performed or happen;
10. It is well settled that before document can be
treated as a promissory note, it is necessary that there should
be;
(i) An unconditional undertaking to pay;
(ii) The sum should be a sum of money and should be
certain;
(iii) The payment should be to or to the order of person
who is certain, or to the bearer, of the instruments;
(iv) And the maker should sign it;
11. This essential feature of promissory note is an express
unconditional promise to pay. It is equally true that all the
documents containing an undertaking to pay the amount
mentioned therein unconditionally are not promissory notes
and to make it such a document, it must be some substantially
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consist of a promise to pay a defined sum and must not be
something else. Another basic tests of a promissory note is
that the payee or bearer must be certain. In the instant case,
all the conditions as discussed above are satisfied and the
disputed document/instrument is essentially a promissory
note.
12. The said document which is executed in Marathi at
Exhibit-C (Page No.22) of the petition, which is re-produced as
follows:-
,d lkS :i;s Rs. 100
Hkkjr ljdkj
vk'oklu i=
fygwu ns.kkj % ukjk;.k ukenso egkuoj
o; 38 o"kZ /kank 'ksrh] jk- nq/kksMh]
rk- Hkqe ft- mLekukckn-
fygwu ?ks.kkj % larjke ukjk;u vkMxGs
o; 35 o"kZ O;olk; foV HkV~Vh]
jk- fpapksyh rk- Hkqe ft- mLekukckn-
vkt jkst QkYxqu d`-8 'kds 1921 eaxGokj fn- 22@3@2000 jksth
dkjus vk'oklu i= fygwu nsrks ,slk th dh] eyk ekÖ;k eqykaps yXuklkBh o
brj izkiaphd [kktxh ns.;klkBh iS'kkph xjt iMY;keqGs eh fygwu ?ks.kkj larjke
ukjk;.k vjMxGs ;kapsdMwu mluokj Eg.kwu fe=Rokps laca/kkus jks[k jDde :i;s
25]000@& iapsohl gtkj :i;s ?ksr vkgs eyk loZ jDde feGkyh vlwu
R;kcíy ek>h dqByhgh rdzkj ukgh- lnjhy jDde eh vkt iklwu vkB
efg.;kps vkr fn-28@11@2000 P;k vxksnj laiw.kZ jDde eh ijr djhu eh
rqEgkal rks"khl ykxw ns.kkj ukgh- lnjhy vk'oklu i= eh ek>s jkthðZus
dqBykgh nckokyk cGh u iMrk o u'kkik.kh u djrk nksu lk{khnkjk le{k
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vk'oklu i= fygwu nsr vkgs-
nLrqj
iksiV Hkkuqnkl ,Mds
jk- lkaxoh-
fnukad % 22@3@2000
fygwu ns.kkj fygwu ?ks.kkj
lgh@& lgh@&
ukjk;.k ukenso egkuoj larjke ukjk;u vkMxGs
jk- nq/kksMh] rk- Hkqe ft- mLekukckn-
lk{khnkj lgh@&
Jh- nsohnkl fdlu dkacGs lgh@&
ns'kekus ukoukFk fnxacj lgh@&
lR;izr
vWMOgksdsV
13. Section 2 (c) of the Maharashtra Stamp Act, 1958
which defines the term bond is reproduced herein below;
"(c) "bond" includes,--
(i) any instrument whereby a person obliges himself to pay
money to another, on condition that obligation shall be void if
a specified act is performed, or is not performed, as the case
may be;
(ii) any instrument attested by a witness and not payable to
order or bearer, whereby a person obliges himself to pay
money to another; and
(iii) any instrument so attested whereby a person, obliges
himself to deliver grain or other agricultural produce to
another;
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14. After going through the contents of disputed
document/instrument, it appears that Section 2 (c) (i) & (iii)
are not at all attracted and so far as Section 2 (ii) is
concerned, the same also does not attract. Mere attestation of
disputed documents/instrument by one or more witnesses is
not sufficient to consider the disputed document/instrument as
a money bond when the other conditions of Section 2 (c) (i) &
(iii) are lacking.
15. In a case of M/s. Patel Stone Trading Co. Nagpur
Vs. Ramsing (Supra) relied upon by the learned counsel for the
petitioner wherein the plaintiff filed a suit for recovery of the
amount on the ground that the defendant committed a breach
of agreement and also for damages for wrongful removal of
the truck. During the course of evidence, the plaintiff has
referred a document for which the defendant has raised the
objection that the document is insufficiently stamped. Learned
Civil Judge (Senior Division) found that the instrument dated
21.04.1971 is a bond and should have been executed on a
stamp paper as per Schedule 1 Article 13 of the Bombay
Stamp Act. Thus, the said instrument was impounded and the
plaintiff was directed to deposit certain amount being the
amount of deficit stamp duty as well as penalty. Against the
said order, the revision has been preferred before the Bombay
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High Court, Nagpur Bench. In the facts of the case, it further
appears that after acknowledging the amount payable, the
document further directed the mode of payment of the amount
which was to be adjusted from the truck charges. The
document further provides that Rs.50 per week were to be
paid to the defendant for his maintenance and the truck was to
remain in custody of the plaintiff till the payment was made.
The document further provides that all other expenses will be
incurred by the plaintiff about repairs etc. of the truck, which
will be debited to the account of the defendant. It has been
contended that the liability as such has not created by the
document and therefore, it cannot be termed as a bond within
the meaning of Section 2 (c) of the Bombay Stamp Act and the
same will have to be construed as an agreement or in the
alternative a security bond. In paragraph no.7 of the
judgment, it is held that there was no pre-existing right or
liability between the parties and for the first time a liability is
created by the document whereby the defendant has agreed to
pay an ascertained sum to the plaintiff and an express promise
about the repayment was incorporated in the document and
therefore, the document will have to be termed as a bond as
defined in Section 2 (c) (ii) of the Bombay Stamp Act. The
facts of this case are different and it cannot be made
applicable to the facts and circumstances of the present case.
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16. In the case of Tulsa Singh and Others Vs. The
Board of Revenue, U.P., (Supra) relied upon by the learned
counsel for the petitioner wherein it is also held that where a
document (indenture) containing the undertaking to pay the
purchase money respecting the sale of resin to be removed
from the forests in consideration of the price, is executed by
the purchaser and the forest Authorities and is also attested by
the witnesses, the document on such attestation takes the
form of a bond and does not remain a mere agreement of sale
of goods. It is held that if that being so, it is chargeable to
stamp duty. It appears that the facts are totally different and
the ratio laid down in the aforesaid case cannot be made
applicable to the facts and circumstances of the present case.
17. In the instant case, in terms of the contents of
disputed document/instrument, there is an unconditional
promise to pay the amount taken. The instrument falls in the
definition of promissory note. I do not find any fault in the
order passed by the trial Court except that the trial Court has
observed that the promissory note is not chargeable with duty.
Learned counsel appearing for the respondent/plaintiff has
tried to convince me by referring Section 3 of the Indian
Stamp Act, 1899. However, the promissory note as defined by
Section 2 (22) of the Indian Stamp Act, 1899, and Section 4 of
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N.I. Act requires the stamp duty as per Article 49 of the
Maharashtra Stamp Act 1958. As per Article 49, the proper
stamp duty is Rs.100. In the instant case, the said
instrumental is on 100 rupees bond and as such the requisite
stamp duty has already been paid.
18. In view of the above discussion, I find no substance
in this writ petition. Hence, I proceed to pass the following
order:
ORDER
(I) The writ petition is hereby dismissed. (II) The trial Court is hereby directed to dispose of the suit, as expeditiously as possible, preferably within a period of one (1) year from the date of this order. (III) Rule discharged.
(V. K. JADHAV, J.) Sam..
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