P L D 1956 Dacca 14 (PLP)

BADIUZZAMAN, J.‑This appeal arises out of Money Suits No. 31 of 1947, of the Court of the Subordinate Judge, 2nd Court, Sylhet. The suit was for recovery of Rs. 13,750 on account of price of 8,000 baskets alleged to have been supplied by the plaintiff to the defendant and Rs. 250 on account of damage. The total claim was laid at Rs. 14,

000. Facts relevant for the purpose of this appeal may briefly be put thus : The defendant was a military contractor and the plaintiff was a sub‑contractor under him. In the early part of 1944, there was a contract between them to this effect that the former would supply the latter cane baskets regularly for the use of the military. Pursuant to the contract plaintiff supplied 8,000 cane baskets in several instalments. Payment was put off on the representation that his bills were held up by the military. On the 5th May 1944, account was settled and Rs.13,750 was found due from the defendant. The defendant could not afford to pay the amount that day, but promised to pay it on demand. This was followed by a demand but it was not complied with whereupon the present action was brought. Defendant denied the allegations of settlement of account .and admission of the liability on the 5th May 1944, pleaded limitation and further averred that initially the contract was that the plaintiff would supply 8,000 cane baskets to Assam Government but subsequently it was revised and the number of baskets was reduced to 5,000 out of which 3,500 were made in the defendant's own factory and the remaining 1,500 were supplied by the plaintiff and that out of the total price, Rs. 675 was paid by cheque and the balance in cash. The learned Subordinate Judge after careful examination and detailed analysis of the materials furnished by the parties negatived the defence pleas and decreed the suit in full where upon the present appeal has been preferred by the defendant. Four points have been urged‑the first being that the suit having been based on an insufficiently stamped promissory note, the learned Subordinate Judge ought to have dismissed it, an insufficiently stamped promissory note not being admissible for any purpose; the second being that the promissory note having been challenged by the appellant as forged document, the Subordinate judge ought not to have taken it into consideration in deciding the case, without obtaining an expert's opinion; the third being that though the onus of proving the particulars of the dealings lay on the plaintiff, the learned Subordinate judge erroneously threw it on the defendant; and the fourth being that the suit not being instituted within three years of the last supply of the baskets, the learned Subordinate judge ought to have held the suit barred under Article 52 of the Limitation Act. All the four points having been pressed with equal emphasis we propose to take them up ad seriatim. The first point apparently has the look of soundness but if tested in the light of the materials on record it will fizzle out. The plaintiff did not proceed with the case in a half‑hearted manner but came up armed with materials of invulnerable character an unbiased examination of which dis closes that on 5th May 1944, there was adjustment of accounts and Rs. 13,750 was found due from the defendant appellant and that on the same date the appellant executed the document, Exh. I, in favour of the plaintiff respondent promising to pay the amount on demand. In the trial Court a dispute arose as to the nature of Exh. I and the learned Subordinate judge found it to be a receipt or a memorandum of agreement. This finding has been taken exception to by the learned Advocate for the appellant. To appraise the merit of the finding of the trial judge it is necessary that we should first look into the document itself and then the true import of the definition of receipt agreement' or 'promissory note' occurring in the Stamp and other Acts. The document in question, namely, Exh. I is styled as hand-note and its relevant portion runs as follows :‑ " For my own need (that is to say as price of 8,000 baskets) I borrow from you a sum of Rs. 13,750. (Rupees thirteen, thousand seven hundred and fifty) on condition of repayment on demand. 5th May 1948," It purports to have been written and attested by one Tarak Chandra Datta, Pleader, Dariapara and signed by the executant Benoy Bhusan Shaha, appellant before us. It bears an one anna stamp which is of course sufficient for the purpose of receipt but grossly insufficient both for the purpose of agreement or promissory note of the value exceeding Rs. 1,

000. Receipt as defined in section 2 (23) includes any note, memorandum or writing: (a) Whereby any money, or any bill of exchange, cheque or promissory note is acknowledged to have been received, or (b) Whereby any other movable property is acknow ledged to have been received in satisfaction of a debt. or (c) Whereby any debt or demand, or any part of a debt or demand, is acknowledged to have been satisfied or dis charged, or (d) Which signifies or imports any such acknowledgment, and whether the same is or is not signed with the name of any person. The document, if tested in the light of provision of sub section (23) of section 2, will demonstrate that it has not the lightest semblance of receipt. In fact no question of granting a receipt on the 5th May 1944, does at all arise when admittedly nothing was paid in cash or kind by the defendant appellant to the plaintiff respondent on that day. Then again if the document was intended to be a receipt, it would have come from the custody of the debtor and not from that of the creditor. Agreement is not defined in the Stamp Act, but it appears to bear the same legal significance as the term ` contract' does. A contract is an agreement made between two or more persons which is intended to be enforcible at law, and is constituted by the acceptance of one party of an offer made to him by the other party to do or to abstain from doing some act. The offer and acceptance may either be expressed or inferred by implication from the conduct of the parties. A proposal when accepted is a promise, a promise is an agree ment and agreement having the qualities mentioned in section 10 of the Contract Act, is a contract. The term contract denotes the legal obligation which is thereby created on the one part to perform the promise and on the other to accept performance of it. But here the instrument does not create obligation on each party. On the other hand the instrument is one‑sided. It contains acknowledgment of debt and a promise to repay it on demand. A written acknowledgment of a debt coupled with a promise to repay it can not, therefore, be brought within the category of contract or agreement. Now let us consider if an instrument with such qualities comes within the category of promissory note. Promissory note as defined in section 4 of the Negotiable Instruments Act, runs thus : " A " promissory note' is an instrument in writing (not being a bank‑note or currency‑note) containing an uncondi tional 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." Subsection (22) of section 2 of the Stamp Act adopted the same definition of a promissory note contained in section 4 of the Negotiable Instruments Act. The subsection runs thus: "Promissory note ' means a promissory note as defined by the Negotiable Instruments 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." What, therefore, follows is that the first paragraph of sub section (22) of the Stamp Act, unconditionally adopts the definition of promissory note occurring in section 4 of the Negotiable Instruments Act, and the second paragraph of the subsection (2) widens, for the purpose of the Stamp Act, this definition so as to include certain Instruments which would not be promissory notes under the Negotiable Act. It will be seen that the central point in the definition of a promissory note in section 4 of Negotiable Instruments Act, is that about the unconditional undertaking to pay money to another, but the enlargement of the definition by the second paragraph of subsection (2), however, does not affect this point. So, essentially, a promissory note is an instrument promising the payment of money to another. In this connec tion a question may arise whether every instrument which contains a promise to pay money to another is a promissory note. Our answer will be in the negative. It is true that the words of section 4 of the Negotiable‑Instruments Act, if literally interpreted, are wide enough to cover every instrument of which 4 of unconditional promise to pay a sum of money to certain person is a part. But this is not the meaning to be attributed to the section, for such literal interpretation if indulged in will lead to the result that all sorts of documents such as mortgages, bonds, debentures, policies of insurance, etc. would come within the definition of promissory notes. Such absurd result is never intended by the definition. On the other hand construction of the section, places certain restrictions on the apparently wide meaning of the definition. Such restriction of the literal meaning of statutory provisions for the purpose of avoiding absurdity is in accord with the well established principles relating to the construction of Statutes. Thus, in order to determine whether an instrument is a promissory note it must be seen whether substantially, it only contains a promise to pay it defined sum of money and nothing more. In other word, the word containing" in section 4 of the Negotiable Instruments Act, really means "consisting of" and not "including". An instrument which contains merely a bare promise to pay money will, therefore, be clearly a promis sory note. A statement of the consideration for the promise is not detrimental to the character of an instrument as a promis sory note. Such a statement does not affect its essential character as the vehicle of a simple promise to pay. But whether what is stated is only the consideration or something more and whether it is such as to affect the essential character of the instrument must be determined on the language of each instrument and the facts and circumstances of the case. The test in each case is to see what is the dominant substantial effect of the instrument. For this purpose, the Court must consider two questions‑what is the intention of the parties and what is the instrument in the common acceptance of men of business or persons among whom it is commonly used. Here in the present case the document says that there was borrowing of Rs. 13,750, but in fact no cash consideration did pass on the date of the promissory note, what happened was this. There was supply of 8,000 baskets and the price thereof was settled at Rs. 13,750 and by the document Exh. I the defendant promised to pay the amount on demand. This unconditional promise to pay a specified sum clearly brings the instrument within the definition of promissory note and it was intended to be treated as such. It is true that the first part of the document is an acknowledgment of debt but an unconditional acknowledgment of debt is not a feature foreign to the structure of a promissory note, for such acknowledg ment implies a promise to pay. The learned Advocate for the appellant contends that once it is held that the document Exh. I is a promissory note insufficiently stamped, the suit must fail, the claim having been based on it, for an insufficiently stamped document is not admissible in evidence for any purpose. In support of his contention he has relied on the decision in the case of Ram Rattan v. Parma Nand (50 C W N 367 P C). The argument appears to have been advanced under erroneous conception of the true import of the plaint and the authority cited again has no bearing on the point under review. It is true that Exh. I is insufficiently stamped but the plaint does not afford any scope for the argument that the suit is based on that‑ document. In the body of the plaint there is not the slightest reference of the promissory note. It of course contains a note under the head ' Remark' to the‑following effect :‑ " On the aforesaid date 5th May 1944, after the accounts were settled between both the parties, the defendant executed a receipt in the shape of a hand-note by himself signing the same and handed it over to the plaintiff. It is being filed herewith." But this note does not form integral part of the plaint. On the other hand it is carefully kept segregated from ' the plaint proper. Under section 91 of the Evidence Act, where the term of a contract have been reduced to the form of a document, no evidence will be admissible in proof of the terms of such contract except the document itself or secondary evidence thereof where the case is one in which secondary evidence is admissible. Hence where a promissory note or bill of exchange is not duly stamped and, therefore, is not admissible in evidence, the note or bill cannot be sued on. In such a case the question arises whether the plaintiff can sue on the original consideration, that is, sue for the debt apart from the bill or note. On this question it is well‑settled that where there is a pre‑existing debt or liability and a bill or note is passed in respect thereof, the plaintiff can fall back on the original consideration if the document is not admitted in, evidence as not being duly stamped. Here in the present case, the claim having been based on the original consideration and not on Exh. I the suit cannot, in our opinion, fail on the ground that the document is insufficiently stamped specially when oral evidence led established beyond doubt that there was original consideration. An examination of the record discloses that the Subordinate judge used the document to corroborate the oral evidence for the purpose of determining the factum of acknowledgment of debt or promise. The learned Advocate for the appellant contends that the course adopted by the trial Court in deciding the case conflicts with the decision in the case of Ram Rattan referred to above. The law laid down in this case is as follows: " Unstamped memoranda of a partition which require to be stamped as constituting an instrument of partition cannot be admitted in evidence even for the purpose of determining the factum of partition as distinct from its terms. It is further held that a document admitted in proof of some collateral matter is admitted in evidence for that purpose and section 35 of the Indian Stamp Act, 1899, enacts that the documents shall not be admitted in evidence for any purpose. " Facts upon which the aforesaid proposition of law is laid down being different from those of the present case it will be unsafe to act upon that principle. Yet there is another aspect. Section 35 of the Stamp Act runs as follows: No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of‑parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped " Provided that‑ " (a) any such instrument not being an instrument chargeable, with a duty of one anna (or half‑an anna only), or a bill of exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion." Besides the proviso (a) there are four other provisions but not being material for the purpose of this case, we do not propose to introduce them here. In deciding the case relied on by the appellant their Lordships of the Judicial Committee kept in view only the provision of section 35 but we do not find any discussion of the next important section, namely, section 36 of the Stamp Act. The section runs as follows: " Where an instrument has been admitted in evidence such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped." Provision of section 36 is mandatory ; and once a document is admitted in evidence rightly or wrongly it is not permissible to the Court whether it is a Court of appeal, revision or trial Court, to reject it from evidence on the ground that it has not been duly stamped or that deficiency has not been made. up and penalty not paid. The expression " admitted in evidence in the section means the act of letting the document in as part of the evidence as a result of judicial determination of the question whether it can be admitted in evidence or not. The instrument in question having been impounded and admitted in evidence after realisation of the penalty, this Court in appeal is not competent to reject it except for the reason laid down in section 61 of Stamp Act. This will find support in the cases of Devachand and another v. Hirachand Kamaraj (I L R 13 Bom. 449 (F B)). Lakhmi Das v. Lakho Ram and another (A I R 1935 All. 410), Nirode Basini Mitra v. Sital Chandra Ghatak (A I R 1930 Cal. 577) and Bhupati Nath Chakravarty v. Basanta Kumari Devi (A I R 1936 Cal. 556). In Devachand s case what happened was this: The plaintiff sued to recover the amount due on three khatas. The defendant objected that the khatas were not duly stamped. The Subordinate judge held that the instruments were bonds, and as such admitted them in evidence on payment of the proper stamp duty and penalty under section 34, proviso (1) of the Stamp Act (I of 1879). At a subsequent stage of the same suit, his successor‑in‑office was of opinion that the khatas in question were promissory notes; that as such they could be stamped only at the date of their execution; and that they had been illegally admitted in evidence under section 34, proviso (1). He accordingly dismissed the suit. On appeal the District judge agreed with the Subordinate judge that the instrument sued on were promissory notes ; but held that, after they had once been admitted in evidence on payment of the stamp duty and penalty; the question of their admissibility could not be subsequently raised in. the suit under the proviso (3) to section 34 of the Stamp Act (I of 1879). He, therefore, reversed the decree of the Subordinate judge and remanded the case for trial on the merits. Against this order of remand, the defendants appealed to the High Court and a Full Bench of the Bombay High Court held as follows: "The promissory notes having been once admitted in evidence could not afterwards be rejected on the ground of their not being duly stamped." It is true that Act I of 1879 has long been repealed by Act II of 1899 but the material portion of section 34 of the Act and its ‑proviso (1) have still retained their pristine mantle and force, A careful comparison of the relevant section of the two Acts discloses that section 34 of the old Act and its proviso (1) correspond to section 35, proviso (a) of the new Act, namely Act II of 1899 and proviso (3) of section 34 of Act I of 1879 corresponds to section 36 of the present Act, and section 50 referred to in section 34 of the old Act again corresponds to section 61 of Act II of 1899. That being the position, it cannot be said that the law laid down in the Full Bench case is no longer in force and cannot be made foundation for the decision of the present case. The Allahabad decision came into existence after the introduction of Act II of 1899 and the section involved in that case were sections 35, 36 and 61 of the Act. In that case the law laid down was this: " A promissory note which is insufficiently stamped cannot be accepted on payment of the stamp duty and penalty as a promissory note is excepted by sub section (a)." But where the instrument has been admitted in evidence by the lower Court, the admission cannot be questioned. Section 61 does not give any jurisdiction to deal with the case of an instrument which should not have been admitted at all. The law laid down in this case appears to be good law and we are of opinion that an insufficiently stamped promissory note once impounded and taken in evidence on payment of penalty can be looked into in deciding the propriety of .the finding of the trial Court. The learned Advocate for the appellant seeks to impress upon us that interpretation of section 36 of the Stamp Act as given by the Full Bench of the Bombay High Court in the case referred to above, if accepted, will render section 35 nugatory. We are unable to subscribe to this view, reason being that section 35 contemplates a stage prior to admission of an insufficiently stamped document and section 36 speaks of the effect of admission of such document. Next comes the second point. The learned Advocate for the appellant contends that the document having been challenged as forged, the trial Court ought not to have relied on it without obtaining an expert's opinion about its genuine ness or otherwise. This contention cannot be given effect to without doing violence to sections 44, 47, 67 and 73 of the Evidence Act. An examination .of these sections will disclose that expert's opinion is not the solitary mode of proving the handwriting or signature. On the other hand Evidence Act provides the following four modes of proving handwriting, viz, (1) By proof of signature and handwriting of person alleged to have signed or written the document (Section 67) ; (2) By the opinion of experts who can compare handwriting (section 45) ; (3) By a witness who .is acquainted with the handwriting of the person by whom it is supposed to be written and signed (section 47) ; (4) by comparison of signature or writing with other admitted and prove (section 73). Here in the present case the document having been proved by a person who was present at the time of its execution, the appellant's grievance on this score is, absolutely senseless. It appears that the suit was filed on the 2nd May 1947, and on the 5th May 1948, a second peremptory date the appellant came up with an application for examination of an expert but it was rejected by the Subordinate judge with the following observation "Defendant by petition No. 820 prays for sending the hand-note in suit for expert examination. The petition is neither verified nor supported by any affidavit. Had the defendant been serious in his prayer the petition would not have been filed so late till today which is a second peremptory date. It is rejected as frivolous." The reason given by the judge for rejecting the prayer affords no scope for any adverse comments. If the appellant were confident about his defence, he would not have remained idle for over a year but would have surely applied for having the document examined by an expert when he found that the plaintiff after the framing of the issues was not taking any step in that direction. Besides, the point has lost all its importance for the purpose of this appeal when the suit is not based on the promissory note. Next comes the third point. The learned Advocate for the appellant contends that though the onus of proving the supply of 8,000 baskets and the price thereof is on the plaintiff the trial Court erroneously threw it on the defendant. This contention also appears to have been advanced under erroneous conception. There is nothing in the judgment to show that the onus was misplaced. On the other hand it appears that the judge after careful examination of the evidence adduced by the plaintiff on the points under review accepted the plaintiff's case in toto. Plaintiff in clear and unequivocal language states that Rs. 13,750 was due from the defendant on account of price of baskets supplied. This statement not having been challenged by the defendant in cross‑examination, the trial judge rightly held that the defendant was liable for Rs. 13,750 on account of price of baskets specially when there was acknowledgment of the debt‑by the defendant him self by a written document, namely, Exh. I. Next comes the fourth point, namely, the question of limitation The learned Advocate for the appellant contends that the last supply of the baskets having been made in the latter part of April 1944, and the present suit having been brought on the 2nd May 1947, that is, beyond three years the trial judge ought to have held the suit barred. In support of his contention he has relied on Article 52 of the Limitation Act, which provides that a suit for the price of goods sold and delivered where no fixed period of credit is agreed upon shall be brought within three years from the date of the delivery of the goods. In order to decide this question it is necessary to look into the evidence led by the plaintiff. P. W. 1, Abdus Samad, is the plaintiff himself. He at first said that in the latter part of April 1944, the defendant had taken baskets for the first time and that this was followed by further supplies on three or four occasions in the month of May following. Then he says that he supplied 8,000 baskets 7 or 8 days before the expiry of the month of April. For the purpose of limitation his statement hopelessly lacks in precision but this has been explained by the trying judge in whose opinion the witness got confused in the witness box. This remark of the judge who had occasion to see the demeanour of the witness cannot be lightly thrown away. The difficulty created by the plaintiff in solving the question of limitation has, however, been removed by P. W. 2, Nuruddin who says that in May 1944, he saw the defendant taking baskets from the plaintiff five or six days. If there was supply for five or six days in the month of May, the last supply must have taken place on 5th May 1944. The present suit having been made within three years from that day, the suit cannot be said to be hit by Article

52. Now assuming for argument's sake that the last supply was made before the 2nd May 1947, even in that case too the suit above cannot fail on the ground of limitation, the debt having been acknowledged in writing signed by the defendant himself on the 5th May 1944. In the result this appeal fails and is dismissed. We make no order as to costs. AMIN AHMED, J.‑I agree. A. H. Appeal dismissed.