BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 04/10/2007
CORAM:
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
C.R.P.(PD)(MD)No.1105 of 2006
and
M.P.(MD) No.1 of 2006
1.P.Bency
2.P.Benister Joseph Pravin
3.P.Benister Francis Soudha ... Petitioners
Vs
Martin Mary ... Respondent
Prayer
Petition filed under Article 227 of the Constitution of India, against
the order dated 28.02.2006 in unnumbered petition in O.S.No.58 of 2005, on the
file of the Sub-Court, Padmanabhapuram.
!For Petitioners ... Mr.C.Godwin
^For Respondent ... Mr.T.Arul
:ORDER
The plaintiffs in O.S.No.58 on the file of the Sub-Court, Padmanabhapuram
have come forward with this Civil Revision Petition, challenging the Order dated
28.02.2006 made in unnumbered petition filed by the petitioners, rejecting the
plea of the petitioners to receive a promissory note in evidence. The respondent
herein is the defendant in the suit.
2. The petitioners/plaintiffs have filed the above suit for recovery of a
sum of Rs.1,00,000/-, which is due under a promissory note dated 21.01.2003,
said to have been executed by the respondent/defendant.
3. During the trial of the case, when P-W-1 was under examination, the
disputed promissory note dated 22.01.2003, was sought to be marked in evidence
on the side of the petitioners. Since it was opposed by the defendant stating
that it is inadmissible, the petitioners have filed a petition (unnumbered)
before the Lower Court requesting the Court to admit the same in evidence. But,
the respondent herein opposed the same by filing counter. Having considered the
same, the learned Subordinate Judge, by means of the impugned order, has
rejected the petition, thereby refusing to admit the said promissory note in
evidence. Challenging the said order of the Learned Subordinate Judge, the
petitioners have come forward with this Civil Revision Petition.
4. Heard the learned counsel appearing for the petitioners/plaintiffs as
well as the learned counsel appearing for the respondent/defendant.
5. Admittedly, the document, which is sought to be marked in evidence is a
promissory note. But, a reading of the said document would show that it is a
promissory note, payable otherwise than on demand. In respect of the said
conclusion arrived at by the Lower Court, there is no controversy between the
parties now. Since it is a promissory note, payable otherwise than on demand,
the same shall fall within the ambit of clause (b) of Article 49 of Schedule I
to the Stamp Act. In this case, a perusal of the document would show that the
same has not been sufficiently stamped as required under the said provision.
6. The learned counsel for the petitioners would submit that the document
could be admitted in evidence, since the petitioners are prepared to pay deficit
stamp fee as well as penalty. He would further contend that the document may
atleast be admitted for the limited purpose of using the same for collateral
purpose.
7. Per contra, the learned counsel for the respondent would submit that
the document in question is inadmissible in evidence for any purpose and the
same cannot be validated by paying deficit fee and penalty as envisaged in the
proviso to Section 35 of the Act.
8. I have considered the rival contentions. In Thenappa v.Andiyappa
reported in AIR 1971 MAD 290, a similar question was considered by a Division
Bench of this Court, wherein by following the Judgement of a Full Bench of this
Court in Perumal Chettiar v. Kamakshiammal reported in [AIR 1938 MAD 785], the
Division Bench has held as follows:-
“Hence, we confirm the conclusion of the learned Subordinate Judge that
Ex-A-1, is a promissory note payable otherwise than on demand and therefore,
falls under clause (b) of Article 49 of Schedule I to the Stamp Act. In view of
the proviso to Section 35 of the Stamp Act, the document cannot be validated by
payment of penalty and the document will be inadmissible for any purpose. But,
this does not conclude the matter, because the plaintiff will still be entitled
to fall back on the original cause of action, namely, the prior indebtedness of
the defendant”.
9. Very recently in Ameer vs. M/s. Vivek Enterprises reported in [2005(1)
MLJ 85], a Division Bench of this Court had an occasion to consider a similar
situation in respect of a promissory note payable otherwise than on demand. The
Division Bench of this Court has followed the earlier Division Bench Judgement
of this Court in Thenappa v.Andiyappa reported in [AIR 1971 MAD 290], wherein
also the Division Bench of this Court has approved the law as follows:-
“The impugned document is a promissory note on which amount is payable
otherwise than on demand. Further, the learned Trial Judge has also rightly
found that the Impugned Document is insufficiently stamped and cannot be
admitted in evidence”.
10. In another Judgement, a learned Single Judge of this Court in
R.Ravindran vs. M.Rajamanickam reported in 2006 (2) CTC 474 has held as
follows:-
“The plaint documents 1 and 2 are promissory notes payable otherwise than
on demand and there is no proper stamp duty. In view of the proviso to Section
35 of the Stamp Act, those documents cannot be validated by payment of penalty
and the documents are inadmissible in evidence for any purpose”.
11. In yet another Judgement, another learned Single Judge of this Court
in Kanhailan Chandak vs. R.Mohan reported in 1980 2 MLJ 234 has held as
follows;-
“When once it is seen that a promissory note which has to be stamped in
accordance, with the provisions of the Stamp Act is not so stamped then the
Section 35 will be attracted and an insufficiently stamped promissory note will
be inadmissible in evidence for any purpose and such a defect cannot be cured by
a subsequent payment of the duty and the penalty thereon”.
12. The law laid down in all the above cases squarely apply to the facts
of the present case and so, it has to be held that since the promissory note in
question is payable otherwise on demand requiring stamp as required under clause
(b) of Article 49 of Schedule I to the Stamp Act and since the required stamp
has not been affixed, the said promissory note is inadmissible in evidence for
any purpose. A plain reading of the proviso to clause 35 makes it very clear
that a promissory note cannot be validated by paying deficit stamp fee and
penalty. In view of the above settled position of law, I have no hesitation to
hold that the Lower Court was right in rejecting the petition.
13. In the result, this Civil Revision Petition fails, and hence the same
is dismissed. No costs. Consequently, the connected M.P is also dismissed.
Nb
To
Sub-Court, Padmanabhapuram.