JUDGMENT
1. This appeal is preferred by the original plaintiff against decree dated 28th August, 1977 passed by the Court of the Joint Civil Judge, S.D. Solapur at Solapur in Special Civil Suit No. 80 of 1975. By the said decree, the trial Court dismissed the suit of the plaintiff with costs.
2. On or about 19th April, 1979, the plaintiff filed the above referred suit against the defendant seeking to recover from the defendants a sum of Rs. 10,000/- with further interest and cost of the suit. It was averred in the plaint that the defendants had executed a promissory note in favour of the plaintiffs being promissory note dated 19th April, 1972 for valuable consideration and defendants had failed to pay the amount due and payable on the said promissory note. With the leave of
the Court, the plaintiff amended the plaint. By the said amendment, it was pleaded by the plaintiff that if the said promissory note was held to be non-admissible in evidence, the plaintiff was nevertheless entitled to recover the said amount from the defendants on the basis of the original consideration as the plaintiff had advanced the said amount to the defendants in cash on 19th April, 1972 and the defendants had received the said amount in cash from the plaintiff.
3. The first question which is required to be decided in this appeal is as to whether the trial Court was justified in taking the view that the said promissory note was inadmissible in evidence on the ground that the said promissory note was not duly stamped as required by law. The learned counsel for the appellant has been good enough to prepare a compilation consisting of a copy of the said promissory note dated 19th April 1972, the same being in marathi and also the translation thereof. There is no dispute about the correctness of the translation of the said document. The executants of the said document have described the said document as a promissory note. It is provided in the said promissory note that the defendants shall be liable to pay the sum of Rs. 10,000/- to the plaintiffs first within six months and thereafter within further six months at any time on demand. The amount of the said promissory note was payable by two instalments as aforesaid. The relevant portion of the promissory note as translated by the learned Advocate for the appellant reads as under:–
“We the promissors are executing this promissory note as we have received from you for our business a sum of Rs. 10,000/-(Rupees Ten thousand only) in cash and we will repay the same to you first within 6 months and thereafter within further 6 months — any time or at any place as may be demanded by you without any dispute and without making any pretext, with interest in full satisfaction.”
The amount of the said promissory note was not made payable immediately on demand but was made payable first within six months of the execution of the promissory note and
thereafter within further six months as stated above.
4. Article 49 of Schedule 1 of the Stamp Act which is as follows:–
Description of Instrument
Proper stamp duty
49.
Promissory note (as defined S. 2(22)).
(a)
(i)
When the amount or value does not exceed Rs. 250/ –
Ten naya paise.
(ii)
When the amount or value exceeds Rs.’250 but does not exceed Rs. 1000
Fifteen naya paise.
(iii)
In any other case.
Twenty five naya paise.
(b)
When payable otherwise than on demand.
The same duly as a Bill of Exchange No. 13) for the same amount payable otherwise than on demand.”
The suit promissory note was not made payable immediately on demand. The amount of the said promissory note was recoverable by instalments. No demand could be made immediately for execution of promissory note. No demand could be made in respect of the amount due and payable under the said promissory note till the expiry of a particular period. The learned trial Judge took the view that the said promissory note was liable to be stamped as required by Art. 49(b) of Schedule I. The suit promissory note was not admittedly stamped in accordance with the mandate of Art. 49(b) of Schedule 1 of the Stamp Act. Section 35 of the Indian Stamp Act 1899 contains an absolute prohibition in respect of non-admissibility of bills of exchange or promissory notes which are not duly stamped. Section 36 of the Act is not applicable to the cases of bills of exchange or promissory notes which are not duly stamped. In other words, if the suit promissory note is found to be unstamped, it would be inadmissible in evidence and the said document cannot be received in evidence even on payment of deficit stamp duty and penalty.
5. The learned counsel for the appellant has very fairly invited attention of the Court
to the relevant case law on the subject. In Thenappa Chettiar v. Andivappa Chettiar , the suit document provided that the execuant shall pay the amount in question to the creditor after two years on demand by the creditor with interest. In para 8 of the judgment, Venkataraman J. speaking for the Court held that the suit promissory note could not be considered as a promissory note payable on demand. The Court came to the conclusion that the suit promissory note was a promissory note payable otherwise than on demand and the document could not be validated by payment of penalty and the same was inadmissible for all purposes. In para 5 of his judgment, Venkataraman J. referred to the case of Alamelu Ammal v. Rangai Gounder . In the promissory note which was subject matter of the case reported in AIR 1945 Mad 42 provided as under:
“I shall pay to you or to your order within two years the said sum.”
Horwill J. speaking for the Court held that within the time of two years the promisee could not enforce the debt and the promissory note was not one payable on demand. The learned Judge held that the promissory note was therefore liable to stamp duty under Art. 49(b) of Schedule I of the Stamp Act i.e., the duty payable as on a bond. The learned Judge held that the said promissory note was inadmissible in evidence as it was not stamped on the footing of a bond. In paragraph 6 of the
said judgment, Venkatarama J. referred to another Madras case decided by Ramachamdra Iyer J. Muthu Gounder v. Perumayammal, where the executant made a promise to pay to the creditor the amount covered by the promissory note was payable after a period of two years on demand. In the case , Ramchandra Iyer, J. recorded that the parties were agreed that if the document was held to be a promissory note, it would fall under Art. 49(b) of Schedule I of the Stamp Act and not Art. 49(a) of the Stamp Act. I am in respectful agreement with the view taken by the High Court of Madras in the above referred case as well as the view taken by Horwill J. in the case reported in AIR 1945 Mad 47. I also agree with the view taken by Ramchandra Iyer J. in, the above referred Madras case. If the ratio of above referred cases is to be applied to the suit promissory note which is the subject matter of this appeal it shall have to be held that the executant of the said promissory note were at liberty to pay part of the amount of the said promissory note within six months from the date of the execution of the promissory note and the remaining part thereof within further six months at any time on demand. If so, the suit promissory note cannot be held as a promissory note payable on demand and it shall have to be held that the suit promissory note was payable otherwise than on demand and was inadmissible in evidence as the same was admittedly not stamped as required by Art. 49(h) of the Schedule appended to the Act.
6. The learned counsel for the appellant invited the attention of the Court to the judgment of High Court of Rajasthan in the case of Bhamwar Lal v. Firm Mangalji _hhoteylal, Beran the said judgment, K.S. Sidhu J. speaking for the Court observed that the learned Judge did not concur with the reasoning of the High Court of Delhi in the case of Suraj Ram Khurana v. Hari Rattan, (1973) 75 Pun LJ (D) 88. In the above referred Delhi case it was held by the High Court of Delhi that a hundi containing a promise of payment after 180 days after the date of its execution could not be held to be a bill of exchange payable on demand. I am in respectful agreement with the view taken by the High Court of Delhi as well as the view taken by the High Court of Madras in the cases referred to in earlier part of this judgment. In the above referred case before the High Court of Rajasthan the Shahjog hundi under consideration was payable on future specified date. The promissory note which is subject matter of dispute in this appeal is not payable “on future specified date”. The ratio of the above referred decision of High Court of Rajasthan has no relevanpe for deciding the controversy which is subject rnaiter of this appeal. I am persuaded to agree with the view taken by the High Court of Madras and by the High Court of Delhi in the above referred cases and not with the view taken by the High Court of Rajasthan as indicated above. I agree with the view taken by the High Court of Rajasthan only to the extent that the expression “bill of exchange payable on demand” used in the Schedule to the Stamp Act should be interpreted by applying the relevant definitions contained in the Stamp Act. The definition contained in Section 2(3) and Section 2(22) of the expressions ‘bill of exchange payable on demand’ and ‘promissory note’ contained in the Indian Stamp Act, 1899 do not assist the learned counsel for the appellant in this case. I have therefore no hesitation in confirming the finding of the trial Court on this aspect. In my opinion, the trial Court rightly held that the suit promissory note was not a promissory note payable on demand, the same was not duly stamped as required by the Indian Stamp Act and the same was inadmissible in evidence.
7. The learned counsel for the appellant has submitted that the suit promissory note may be considered by the Court as a mere receipt or as an agreement. Having regard to the language of the instrument under consideration and the contents thereof, it is not possible to accept this submission. The plaintiff has rightly described the instrument in dispute as promissory note in the plaint itself and the instrument in dispute is on the face of
it a “promissory note” and not a mere receipt or an agreement.
8. The learned counsel for the appellant then submitted that even if the promissory note was not admissible in evidence, the appellant is entitled to succeed before this Court on the basis of alternate plea of original consideration as set out in para 1A of the plaint. I have gone through the plaint with the help of the learned counsel for the appellant. The original consideration pleaded by the plaintiff in the plaint was that the defendant had borrowed a sum of Rs. 10,000/- in cash from the plaintiff for the purpose of their business. In his deposition the plaintiff, inter alia, stated as under:–
“Question:– Is it a fact that you did not pay Rs. 10,000/- in cash to defendants?
Ans:– The said amount was due in respect of land transaction.
It is true that I did not pay the amount of Rs. 10,000/- in cash to the defendants. I cannot say as to why I have stated in my plaint that the defendants obtained cash amount of Rs. 10,000/- from me on 19-4-1972 for their trade purpose.”
In my opinion, the learned trial Court was right in holding that the plaintiff had failed to prove the alternate cause of action in respect of the original consideration as laid in the plaint. It was not the case of the plaintiff in the plaint that the plaintiff was claiming the said sum of Rs. 10,000/- as balance of unpaid price in respect of land transaction between the parties. It is not permissible for the Court to permit the plaintiff to travel beyond the pleading in the suit and shift his cause of action in respect of nature of original consideration as attempted to be done by or on behalf of the plaintiff.
9. The learned counsel for the appellant is right to a limited extent when she contends that the learned trial Judge ought not to have accepted the plea of the defendants to the effect that the defendants had executed the said promissory note as a result of coercion or duress. If the said promissory note was admissible in evidence, I would have reversed
the finding of the trial Court on this aspect of the case. The above referred submission of the learned counsel for the appellant is of no practical utility to the plaintiffs as the suit promissory note is found to be inadmissible in evidence. Once the impugned document is inadmissible in evidence, it is unnecessary to record a positive finding on the issue as to whether the plaintiff had obtained the said promissory note from the defendants as a result of coercion or duress. If the promissory note would have been admitted in evidence, I would have perhaps held that the said promissory note was not obtained as a result of coercion. If the promissory note would have been admissible in evidence, consideration for the promissory note would have presumed and the evidence of the parties would have been examined in a different perspective.
10. In the result, I confirm the finding of the trial Court to the effect that the suit promissory note was not admissible in evidence as the same was not duly stamped. I also hold that the plaintiff failed to prove the original consideration as stated in the plaint.
11. In the result, the appeal fails. The order of cost passed by the trial Court against the appellant is set aside. Each party shall bear cost of the suit as well as the appeal as incurred.
12. Issue of certified copy expedited.
13. Appeal dismissed.