ORDER
G. Rohini, J.
1. This civil revision petition is directed against the order dated 14-3-2006 passed by the Principal Junior Civil Judge, Karimnagar in O.S. No. 557 of 2004 upholding the objection raised by the defendant as to stamp duty payable on the suit document dated 19-5-2003.
2. The revision petitioner is the plaintiff who filed the suit for recovery of Rs. 70,000/- allegedly due from the defendants/respondents herein. The plaintiff pleaded in the plaint that the husband of the 1st defendant by name Kamalakar Rao borrowed a sum of Rs. 70,000/- from the plaintiff on 19-5-2003 and executed a document on the same day agreeing to pay the said amount on demand. It is also pleaded that the said Kamalakar Rao issued a cheque bearing No. 675910 dated 19-5-2003 for a sum of Rs. 70,000/- towards collateral security. However, he evaded payment of the said amount in spite of several demands made by the plaintiff and recently he died intestate leaving behind the defendants, being his wife and children. It is pleaded that the self-acquired properties as well as joint family properties of late Kamalakar Rao are in possession of the defendants by way of succession. Even the cheque issued by late Kamalakar Rao dated 19-5-2003 when presented in the Bank was bounced on account of insufficient funds. Hence, the suit for recovery of money due under the document dated 19-5-2003.
3. The defendants filed written statement contesting the suit claim. During the trial the plaintiff got himself examined as P.W. 1 and sought to mark the document dated 19-5-2003 executed by late Kamalakar Rao as an exhibit claiming that it is a promissory note. However, an objection was raised on behalf of the defendants contending that the said document is a Bond but not Promissory Note and therefore unless deficit stamp duty and penalty are paid the same cannot be received in evidence. The said objection was upheld by the Court below and under the impugned order dated 14-3-2006 the plaintiff was directed to pay requisite stamp duty and penalty. The said order is questioned by the plaintiff in this revision petition contending inter alia that the conclusion of the Court below that the document dated 19-5-2003 is a Bond is erroneous.
4. I have heard the learned Counsel for both the parties and perused the material on record.
5. At the outset, the definitions of ‘Bond and ‘Promissory Note’ as defined under Section 2(5) and Section 2(22) respectively of the Indian Stamp Act, 1899 may be extracted hereunder:
(5) Bond.–“Bond” includes–
(a) any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be;
(b) any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another; and
(c) any instrument so attested, whereby a person obliges himself to deliver grain or other agricultural produce to another.
(22) Promissory Note :-“Promissory Note” means a promissory note as defined by the Negotiable Instruments Act, 1881 (26 of 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;
6. It is also relevant to extract Section 4 of the Negotiable Instruments Act, 1881 which defines Promissory Note as under:
4. “Promissory Note”:–A “promissory note” is an instrument in writing (not being a banknote or a currency-note) containing an unconditional 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.
7. On a plain reading of the above definitions, it is clear that whereas any instrument attested by a witness whereunder the person obliges himself to pay money to another is a Bond, the following essentials should be satisfied for a Promissory Note.
(a) it must be an instrument in writing;
(b) it must not be a bank-note or a currency-note;
(c) it must contain an unconditional undertaking;
(d) it must be 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.
8. Coming to the instant case, for proper appreciation of the nature of the document in question, the contents of the same may be extracted hereunder:
On 19-5-2003 I Ch. Kamalakar Rao, S/o. Narsinga Rao, resident of Karimnagar have taken a sum of Rs. 70,000/- (Rupees seventy thousand only) from Perumalla Mallesam, S/o. Odaiah, resident of Kothapalli towards my necessity. I will pay the said amount within 7 days from the date of demand. For the said purpose, I have given the cheque bearing No. 675910, State Bank of Hyderabad. This document is executed on my own.
Sd/- Ch. Kamalakar Rao
Witnesses:
1. Sd/-
2. Sd/-
Scribe : Dodda Ramreddy S/o. Sankar Reddy.
9. Since the document was attested by two witnesses and it was not payable to order or bearer, but the maker obliged himself to pay money to the person named in the document i.e., the plaintiff in whose favour the document was executed, it squarely falls under Clause (b) of Section 2(5) of the Indian Stamp Act, 1899 and therefore as rightly construed by the Court below it is a Bond.
10. However, it is relevant to note that the document in question can also be construed as a Promissory Note since it satisfied all the ingredients of a Promissory Note as defined in Section 4 of the Negotiable Instruments Act, 1881 read with Section 2(22) of the Indian Stamp Act, 1899.
11. As can be seen the document is an instrument in writing signed by the maker and attested by two witnesses. The maker while acknowledging the debt undertook unconditionally to pay the said amount on demand to the plaintiff i.e., the person in whose favour the document was executed. Hence, it is also a Promissory Note.
12. Thus, in my considered opinion, the document in question comes within the descriptions of both the Bond and the Promissory Note as defined under Section 2(5) and Section 2(22) respectively of the Indian Stamp Act, 1899.
13. Then, the question that arises for consideration is as to the stamp duty leviable on the document in question.
14. Section 6 of the Indian Stamp Act, 1899 which provides for such situations runs as under:
6. Instruments coming within several descriptions in Schedule I :-Subject to the provisions of the last preceding section, an instrument so framed as to come within two or more of the descriptions in Schedule I, shall, where the duties chargeable thereunder are different, be chargeable only with the highest of such duties:
Provided that nothing in this Act contained shall render chargeable with duty exceeding one rupee a counterpart or duplicate of any instrument chargeable with duty and in respect of which the proper duty has been paid.
15. In the light of the above provision, it is clear that where the duties chargeable under Schedule-I in respect of two documents are different, such document shall be chargeable with the highest of the duties payable.
16. Consequently, it follows that the document in question which falls within the descriptions of both ‘Bond’ and ‘Promissory Note’ is chargeable with the duty payable on ‘Bond’, the same being highest of the duties prescribed for the ‘Bond’ and ‘Promissory Note’.
17. In the circumstances, the order of the Court below directing collection of requisite stamp duty payable on ‘Bond’ and the penalty cannot be held to be erroneous though for different reasons as explained above.
18. In the result, the civil revision petition is dismissed. No costs. The petitioner/plaintiff is granted two weeks time from the date of receipt of this order to comply with the directions of the Court below.