P L D 1987 Karachi 76 (PLP)

(c) entry as an advocate, Vakil or attorney on the roll of a High Court ; (d) notarial acts, and (e) transfers by endorsement of shares in any incorporated company or other body corporate". Promissory note has been defined by section 2(22) of the Stamp Act as follows :

"(22).-`Promissory note' means x promissory note as defined by the Negotiable Instrument Act 1881 ; It also 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 ;" This definition has imported the definition of promissory note provided' by section 4 of the Negotiable Instrument Act. However, for purposes of Stamp Act the second paragraph of section 2(22) widens the definition of promissory note as defined by section 4 of the Negotiable Instrument Act which reads as follows :- A promissory note is an instrument in writing (not being a bank note or a currency note) containing an 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 instru ment." There is no dispute that Exh. 5/2 is covered by the definition of the promissory note. A promissory note is chargeable with stamp duty under Article 49 of the Stamp Act which after amendment by the Sind Finance ordinance, 1982, reads as follows:-- "

49. Promissory Note as defined by section 2(22)- (4) When payable on demand (i) When the amount or value does not exceed two hundred fifty thousand rupees; Fifteen Rupees. (ii) When the amount exceeds two hundred fifty thousand rupee; Thirty rupees. (b) When payable otherwise than The same duty as on a on demand; Bill of Exchange (No. 13) for the same amount payable other wise than on demand. According to Article 49 as amended by the Finance Ordinance 1982 on a promissory note payable on demand for the amount not exceeding Rs. 2,50,000 the stamp duty is Rs. 15 but where the amount exceeds Rs. 2,50,000 it is chargeable with stamp duty of Rs.

30. Clause (b) of; Article 49 reproduced above is not applicable to the present case. Mr. Tariq, the learned counsel for the plaintiff relying on the following rule 13 (f) of the Pakistan Stamp Rules 1925 contended that the promis sory note has been properly stamped :

"

13. Use of adhesive stamps on certain instruments.-The following instruments may be stamped with adhesive stamps namely:

(f) Instruments chargeable with stamp duty under Articles 19, 36, 37, 49 (a) (ii) and (iii) and 52 of Schedule

1. In view of rule 13(f) instruments which are chargeable with stamp duty under Article 49(a)(ii) can be stamped with adhesive stamp applicable Article 49(a)(ii) as reproduced above is pin which the amount exceeds Rs. 2,50,

000. Ticable to the promissory note under rule 13 read with Article 49 as amended by Sind Finance Ordinance, 1982, a promissory note in respect of amount exceeding Rs. 2,50,000 can be stamped with adhesive stamp. Mr. Kanwar Mukhtar Ahmed, the learned counsel for the defendant, has specifically referred to section 11 and contended that according to this provision of law promissory note executed or made out of Pakistan can be stamped with adhesive stamp, but other promissory notes made in Pakistan cannot be stamped with adhesive stamp. The provision of section 11 is directly and permissive as the words used are that the follow ing instruments `may' be stamped with adhesive stamp. It does not prohibit nor impose restriction that promissory notes of any other value D cannot be stamped with adhesive stamp. This reasoning finds support from rule 13 read with Article 49 as amended by the Sind Finance Ordinance VI of 1982 which permit fixation of adhesive stamp on promissory note even in. cases where amount exceeds Rs. 2,50,

000. The next contention of the learned counsel is that promissory note incorporates the liability of three persons namely the defendant No. 1 and the defendant No. 2 severally and the liability of the defendants jointly. According to the learned counsel for the defendants this means that there are three documents incorporated in one document and for the purposes of stamp duty each promissory note should have been stamped with Rs. 30, therefore, the total stamp duty payable on such document was Rs.

90. Thus, the pronote has been insufficiently stamped. The argument of the learned counsel is based with reference to the liability of the executant. The learned counsel has referred to a commentary from Aggarwal on Stamp Act where it has been stated that where two persons jointly and severally execute a pronote there are three liabilities. In the same book in the foot note it is mentioned that this comment is with reference to Order I, rule VI, C. P. C. A promissory note executed by one person for himself and on behalf of another jointly and severally or by two persons jointly and severally binds both of them individually and collectively. The joint and individual liability arises from one document. Such promissory note cannot be treated as three separate promissory notes requiring stamp duty for each promissory note separately. Under the Stamp Act the stamp duty is charged on the basis of the amount mentioned in the promissory note and not on the basis of the number of persons executing it. No restriction has been placed under law restricting the number of persons, who could execute the promissory note jointly or severally. My finding is in the affirmative. The effect of this finding is that the promissory note is a duly and properly stamped document. Issue No. 2; The learned counsel for the defendant contended that the promissory note was executed in pursuance of agreement entered into between the parties under which the defendant was bound to pay Rs. 5,00,000 to the plaintiff and the promissory note was executed as a collateral security, therefore, it is without consideration. On the admitted facts it is clear that the defendants were liable to pay Rs. 5,60,000 and as a security for its payment, the promissory note was executed. There is a valid considera tion for execution of such a promissory note and merely because it was F executed as a security for payment of any loan or amount due under an agreement it cannot be held to be without consideration. The promissory note is a valid document executed for consideration. Issue No. 3; The defendant has alleged that the plaintiff has committed breach of agreement and, therefore, the payment of Rs. 1,50,000, was withheld. In support of this allegation the defendant No. 1 has appeared and stated that after the agreement he had paid seven instalments but the plaintiff started a campaign of vilification against the defendants and instigated sub-contractors and workers of the defendants to make false complaints before various Government Authorities. According to the defendants the plaintiff had agreed orally .to cooperate with the defendants, but as he indulged in aforestated activities he committed breach of agreement and payment was stopped. Except the words of the defendant No. 1 there is no evidence to establish this fact. The defendants could have examined such authorities or produced such reports which were lodged against them, but no effort was made in this direction. It may be mentioned that the plaintiff was employed with the defendant No. 1 who started his G career with him and was ultimately made one of the directors of the defendant No.

2. There seems to be some personal animosity which has led to this unfortunate situation. However, on the basis of record the defendants have failed to prove that any breach of agreement was com mitted by the plaintiff justifying stoppage of payment to the plaintiff. The defendant No. 1 has frankly admitted that he was liable to pay Rs. 1,50,000 to the plaintiff but due to his subsequent conduct he did not pay the same. This can hardly be a defence particularly as the defendant has not been able to establish the misconduct of the plaintiff.1 In these circumstances my finding is in the negative. Issue No. 4; In view of the above discussion the suit is decreed for Rs. 1,50,

000. A. A. Suit decreed.