1991 PLP 164 (CLC)

The appellants by their letter dated 19-12-1975 asked the respondents to adjust the sum of Rs.12,

776. Thereafter sent the final notice (Ext.9/3) calling upon the respondents to adjust the outstanding amount. The respondents by their letter dated 25-3-1976 (Ext. 9/6) undertook to pay the amount in instalments of Rs.500 per month. Again the respondents by their letter dated 14-5-1976 (Ext. 9/7) wrote the following:- "Your letter No. IBM-1711/452-N received on 13th May 76 you allow me three days time for 50% payment is very short. I request to you please allow 30 days for 50% payment, first monthly instalment of Rs.1,000 will pay end of this month and after I will pay regularly month by month, again I request you please allow 30 days time for 50% payment." The respondents acknowledged the outstanding amount and undertook to pay the amount in instalments. In this view of the matter, the suit was filed pay within time. Mr. Mohammad Zaki Ahmed has fairly conceded that the suit was within time. The finding of the trial Court on this point is set aside. Reverting to the second contention of Mr. Faseehuddin Ahmed that the promissory note was duly stamped and admissible in evidence. The respondents P leaded in their written statement that the promissory note is prima facie not duly P stamped. As such the same is not valid. Promissory note was executed on 14-10 1974. It was produced as Ext. 3.It bears special adhesive stamp. In order to appreciate the contention of the learned counsel for the parties, it is advantageous to reproduce section 11 of the Stamp Act and Rule 17 of the Pakistan Stamp Rules, 1925, which read as under:- "

11. Use of adhesive stamp..-The following may be stamped with adhesive stamps, namely chargeable with a duty not exceeding twenty-five paisas (a) instruments except parts of bills of exchange payable otherwise than on demand and drawn in sets; (b) bills of exchange, and promissory notes drawn or made out of Pakistan; (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." "

17. Special adhesive stamps to be used in certain cases: -The following instruments when stamped with adhesive stamps shall be stamped with the following descriptions of such stamps, namely: Bills-of-exchange, cheques and promissory notes drawn or made out of (a) Pakistan and chargeable with a duty of more than one anna; with stamps bearing the words `Foreign Bill'. (b) ............ (c) ............ (e) ............ (g) Mr. Faseehuddin Ahmed contended that it would suffice the provisions of the Stamp Act and the Rules framed thereunder if the proper stamp duty is paid and the mode adopted in the present case viz. affixing special adhesive stamp in the promissory note will not make the document an improperly stamped or not duly stamped one, so as to make it inadmissible for consideration in Courts.'; I find there is force in the contention put forth by the learned counsel for the appellants. Section 10 (1) of the Stamp Act lays down. "(1)Except as otherwise expressly provided in this Act, all duties with which any instruments are chargeable shall be paid, and such payment shall be indicated on such instruments, by means of stamps:-- (a) according to the provisions herein obtained; or (b) when no such provision is applicable thereto--as the Provincial Government may by rule direct." ,.,.Section 11 of the Stamp Act lays down that the instruments set out under Clauses (a) to (e) thereunder may be stamped with adhesive stamps. Clause (b) of section 11 refers to bills-of-exchange and promissory notes drawn or made out of Pakistan. Obviously this clause would not apply to the case in question as the promissory note was executed in Pakistan. Coming to the rules framed under the Act, I reproduce Rule 5 which reads as follows:--

5. Promissory notes and bill-of-exchange.

A promissory note or bill-of exchange shall, except as provided by section 11 or by rules 13 and 17. be written on paper on which a stamp of the proper value, with or without the word "hundi". has been engraved or embossed." It will be relevant to refer to Rule 13 also because Rule 5 referred to above, states that a promissory note or bill-of-exchange shall except as provided by section 11 or by rules 13 and 17 be written on paper on which a stamp of the proper value has been engraved or embo4sed. Rule 13 reads as follows:-- "

13. Use of adhesive stamps on certain instruments.

The following instruments may be stamped with adhesive stamps, namely:-- (a) Bills of exchange payable otherwise than on demand and drawn in sets, when the amount of duty does not exceed one anna for each part of the. (b) Transfers of debentures of public companies and associations. . (c) Copies of maps or plans, printed copies, copies of or extracts from registers given on printed form and copies of records of the Courts and offices under the control of the High Court of Judicature at Lahore other than the records of judicial proceedings when chargeable with duty under Article 24 of Schedule I-A. (d) Instruments chargeable with duty under Articles 5 (a) and (b) and 43 of Schedule I. (e) Instruments chargeable with stamp-duty under Article 47 of Schedule 1. (f) Instruments chargeable with stamp-duty under Articles 19, 36, 37, 49 (a) (ii) and (iii) and 52 of Schedule L" The expression used in Rule 13 of the Rules is `may'. The rule is merely a permissive one, permitting the use of adhesive stamp on promissory notes payable on demand when the amount in any other case is rupees ten. The rule u does not lay down that such promissory note shall be stamped with adhesive stamp of the requisite value. The result is that a promissory note in any other case can be written on a paper having an impressed stamp or it can be stamped with special adhesive stamps of the requisite value. In my view a promissory note can be stamped either with special adhesive stamps or adhesive stamps or engraved on a stamp paper of proper value. In this view, I find that the trial Court is not correct in holding the document as not duly stamped and inadmissible and dismissing the suit. The finding on this issue is set aside. In the light of the aforesaid discussion, it is difficult for me to accept the contention of Mr. Mohammad Zaki Ahmed that the promissory note was not admissible and the suit was barred by time. The appeal of the plaintiffs is therefore allowed. The suit shall stand decreed with costs. It has come on record that a sum of Rs.13,650 was appropriated by the appellants Bank and the outstanding amount is Rs.20,024 on 31-3-1990. The appellant Bank is entitled to recover Rs.20,024 with interest thereon as per clause (a) of Section 34-B of the Code of Civil Procedure. AA./H-231/K Appeal allowed.