Brojender Coomar vs Bromomoye Chowdhrani on 11 December, 1878

Calcutta High Court
Brojender Coomar vs Bromomoye Chowdhrani on 11 December, 1878
Equivalent citations: (1879) ILR 4 Cal 885
Bench: White, Mitter



1. The plaintiff, Brojender Coomar Roy Chowdhry, who is appellant before us, has sued three defendants, one of whom alone, Bromomoye Chowdhrani, is the respondent in this appeal, to recover a sum of Rs. 20,825.

2. He alleges in his plaint that these three defendants borrowed that sum on seven different occasions, between the 23rd Assar and the 12th Kartic of 1281 (6th July and 28th October 1874), and that the several advances were each entered at the time of borrowing in a hatchitta, which he produced, and which purports against each item to bear the signature of the male defendant and the seals of the two female defendants, of whom Bromomoye is one. The lower Court has passed a decree against two of the defendants, namely, Sampadmani and Mohinee Chundra, for the whole amount claimed, but against the second defendant, who is the respondent before us, only for the first item appearing in the hatchitta, viz., 3,500 rupees and interest. A one-anna adhesive stamp was affixed at the head of the defendant’s account in the hatchitta, which the Court has appropriated to the first item of advance contained in the account. But as regards the remaining six items, no stamp being affixed against any of them, the Subordinate Judge has yielded to Bromomoye’s objection, that they are inadmissible in evidence for want of a stamp, and has not considered himself at liberty to consider the evidence adduced by the appellant to show that the advances to which these six entries relate were made. Hence the decree against Bromomoye is confined to the amount of the first advance. The difficulty of the stamp with regard to the remaining six advances was got over in the case of the first and third defendants, because the Court held that upon their pleadings they had admitted the whole sum claimed in the suit to be due, and they have not; appealed against the decree, which the Court has accordingly passed against them.

3. The first point we have to consider is, whether the entries in question require a stamp or not. The provision in the Stamp Act under which the lower Court holds that a stamp is required is the 5th Article of Scheduleii. That Article imposes a one anna stamp upon a particular note or memorandum. The words of the Article descriptive of the document to be stamped, and which are considered by the Court below to apply to each item in the hatchitta, are these: “A note or memorandum written in a book, whereby a debt or a part of a debt amounting to Rs. 20 or upwards is acknowledged to be due.” Now if any one of the entries in the hatchitta had stood alone and had been intended by the parties to form an isolated entry in the book, it might have been contended with considerable force that it fell within the description of document mentioned in the 5th Article as requiring a stamp. We think, however, that the entries cannot be detached from the account of which they form a part. That account has two sides to it, the one headed “amount advanced,” and the other “amount received.” The amount due varies from time to time, and depends upon the relation of the amount advanced to the amount received. In the present case no sum is entered under the head of amount received,” but that is an accident, and makes no, difference in considering the question as to what is the nature of the document which is offered in evidence. The intention of the parties in requiring the signature or seal of the borrowers to each sum. advanced is, strictly speaking, to secure under their hands an acknowledgment that the sum is advanced. Whether or not that sum is due, or a larger sum or a less sum, depends upon the state of the account. In determining whether a document comes within the description of a document upon which a stamp is imposed by the Stamp Act, we must look at the entire document, and see whether it fairly falls within the description. The document in this case which is offered as evidence is not a note or memo., acknowledging a debt or part of a debt to be due, nor a series of such entries and memos., but an account between the parties of the character abovementioned, and as such did not in our opinion require a stamp.

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