Subhash Ratanlal Agrawal vs Mrs. Naseem Begum Abdul Gaffar … on 16 December, 2008

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH




                                                                    
              WRIT PETITION NO. 4489 OF 2008




                                            
                            AND
              WRIT PETITION NO. 4491 OF 2008




                                           
     WRIT PETITION NO. 4489 OF 2008


     Subhash Ratanlal Agrawal,




                                 
     age 44 years, occupation -
     Business, r/o State Bank Colony,
                    
     Ganesh Nagar, Gondia.                     ... PETITIONER

                         Versus
                   
     Mrs. Naseem Begum Abdul Gaffar Khan,
     age 42 years, occupation - Transport,
     r/o Near Bhavbhuti Rang Mandir,
      


     Lohiya Ward, Gondia.                  ... RESPONDENT
   



     Shri A.N. Vastani, Advocate for the petitioner.
     Shri V.R. Mundra, Advocate for the respondent.





                          .....

     WRIT PETITION NO. 4491 OF 2008





     1.   Renu w/o Subhash Agrawal,
          age 38 years, occupation -
          Household, r/o State Bank Colony,
          Ganesh Nagar, Gondia.

     2.   Subhash Ratanlal Agrawal,




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          age 44 years, occupation -
          Business, r/o State Bank Colony,




                                                                     
          Ganesh Nagar, Gondia.                 ... PETITIONERS




                                             
                         Versus

     Abdul Gaffar Hasan Khan,
     age 48 years, occupation - Transport,




                                            
     r/o Near Bhavbhuti Rang Mandir,
     Lohiya Ward, Gondia.                       ... RESPONDENT




                                  
     Shri A.N. Vastani, Advocate for the petitioners.
     Shri V.R. Mundra, Advocate for the respondent.
                     ig   .....

                               CORAM : B.P. DHARMADHIKARI, J.

DECEMBER 16, 2008.

ORAL JUDGMENT :

Rule. Rule is made returnable forthwith and heard

finally with the consent of Shri Vastani, learned counsel for the

petitioners and Shri Mundra, learned counsel for the respondents.

2. The petitioners – plaintiffs have filed a suit for recovery

of certain amount against the present respondents and in it they

have produced a document titled agreement dated 7.9.2004 in

support of their contention. The present respondents raised an

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objection and contended that it is a bond and, therefore, the

document should be impounded. The contention of present

petitioners in reply was that it is only an acknowledgment and

the Court below has by impugned order dated 13.8.2008 held

that the document was not an acknowledgment but a bond. It

has, therefore, allowed the objection raised by the present

respondents and directed the petitioners/ plaintiffs to pay

requisite stamp duty.

3. Shri Vastani, learned counsel for the petitioners, by

relying upon the definition of Bond in Section 2(c) of Bombay

Stamp Act, 1958, (hereinafter referred to as the Act) contends

that the document dated 7.9.2004 is not basically attested by the

witness. He further states that the document itself shows that it

is in respect of old or pre-existing liability. He, therefore, states

that on both these counts, the document cannot be treated as a

bond and ought to have been read as acknowledgment. He relies

upon the judgment of this Court in the case of Patel Stone

Trading Company vs. Ramsing, reported at AIR 1975 Bom. 79,

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particularly paragraph 4.

4. Shir Mundra, learned counsel for the respondents,

relies upon the language of the document and explanation to

Section 2(c) of the Act to urge that the Court below has rightly

treated the document as a bond and not an acknowledgment. He

also relies upon the above referred judgment and subsequent

judgment in the case of Lexicon Finance vs. Park Securities,

reported at 2004 (1) Mh. L.J. 934, in which said judgment has

been followed. He contends that the document nowhere shows

that earlier there was any promise to pay.

5. I have perused the document in dispute as also both

the judgments on which respective learned counsel have placed

reliance. The perusal of Patel Stone Trading Co. vs. Ramsing,

(supra) particularly paragraph 2 shows that similar contention

was raised before this Court by pointing out that the document

there was merely an agreement providing for payment of pre-

existing debt and, therefore, it was not a bond. It was contended

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that the document accepted that the amount was payable. The

consideration in paragraphs 4 and 5 is relevant and those

paragraphs read as under :

“4. The real test to decide as to whether a
particular document is a bond or not, is to find out

after reading the document as a whole as to whether
an obligation is created by the document itself or it is

merely an acknowledgment of a pre-existing liability.
If there is merely an acknowledgment of pre-existing

liability which could have been enforced apart from

the document itself, then the matter stands on a
different footing. But if the document creates an
obligation in itself with an express promise for

payment of an amount, in my opinion such a

document will have to be termed as a bond within the
meaning of Section 2(c)(ii) of the Bombay Stamp Act.

5. In (AIR 1972 Madh Pra 54), the Madhya

Pradesh High Court has drawan a distinction between
an acknowledgment and a bond. After observing that
the word “acknowledgment has not been defined in

the Act, but it would be pertinent to refer to Article 1
of the Act, which gives its description and thereafter
reading the proviso, it was observed by the Madhya
Pradesh High Court :

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“Thus, on reading the aforesaid description

in Article 1 with sub-section (5) of Section 2 of the
Act, it would appear that where an acknowledgment

contains a promise to pay, it is not to be stamped as
an acknowledgment, but will have to be stamped as a
bond, where it is attested by a witness and is not

payable to order or bearer.”

In substance, therefore, if an express stipulation

regarding the payment of an amount is incorporated
in the document itself, in my opinion, the document

will have to be construed as a bond because it creates

an obligation in itself. So far as the present document
is concerned, the defendant has acknowledged the
liability for an amount of Rs.24,596.30 and had

expressly promised to repay the same and such a

promise has been incorporated in the document itself.
In the said document, there is an acknowledgment of
an ascertained amount with a further promise to pay

the amount with interest and the document is attested
by witnesses.”

6. It is not necessary for me to refer to the judgment in

the case of Lexicon Finance vs. Park Securities (supra) because

the same law has been applied there to document and relevant

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clauses i.e. clauses (5) & (6) are reproduced in paragraph 3 of

said judgment. The document has been treated as a bond and

the document was ordered to be impounded.

7. Section 2(c) of the Act is an inclusive definition of a

bond and its relevant portion i.e. clause (ii) is as under :

(ii) any instrument attested by a witness and
not payable to order or bearer, whereby, a person

obliges himself to pay money to another;”

Thus, the said portion requires the instrument to be

attested. During arguments before me, xerox copy of agreement

was produced to show that it has not been so attested. Shri

Mundra, learned counsel for the respondents does not dispute

that it is not attested by witnesses. However, he has invited

attention to explanation to Section 2(c) above state that the word

attested in said clause (ii) has been given a different meaning for

the purposes of said definition and Notary before whom the

document has been executed by the respondent is, therefore,

deemed to have attested the execution of said document. He

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contends that Notary has witnessed the respondent while putting

her signature on said document and that is sufficient attestation

for the purposes of Section 2(c)(ii) of the Act.

7. The explanation to Section 2(c)(ii) of the Act, clearly

shows that the word attested in relation to an instrument means

attested by one or more witnesses each of whom has seen the

executant sign or affix his mark to the instrument. The document

is executed before one Indrakumar Hotchandani i.e. a Notary at

Gondia and it is, therefore, more than clear that he has witnessed

the executant i.e. present respondent putting her signature on

said document. The requirement of explanation to Section

2(c)(ii) of the Act is, therefore, satisfied in present case. The

contention that the document is not attested, therefore, cannot be

accepted.

8. The language of agreement itself falsifies the

contention that there was any pre-existing liability accepted by

the respondent. The document only mentions that amount of

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Rs.90,000/- was taken in cash. However, this line which is first

sentence of the document nowhere mentions that it is taken as a

loan. The second sentence thereafter promises to pay that

amount back and that promise is in the present and for that a

cheque of Rs.90,000/- of future date has been handed over.

Thus, it is not a reproduction of what was already agreed orally

between the parties earlier. The promise to repay is then made

(in present) only in said agreement. During arguments, it has

been specifically stated that apart from this document, there is no

other receipt or any other chit or similar paper with the petitioner

to show the payment of amount to the respondent. It is,

therefore, obvious that the document for the first time contains a

promise of repayment to present petitioner. The document,

therefore, cannot be said to be a mere acknowledgment of pre-

existing liability. There is nothing in the document to show that

the respondent accepted any such pre-existing liability. If the

document is read in the light of facts disclosed, it is apparent that

the liability to repay is coming on record or accepted for the first

time in said document. The trial Court has, therefore, correctly

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treated the document as a bond.

9. I do not find any perversity or jurisdictional error in the

judgment of the trial Court. Writ Petitions are, therefore,

dismissed. Rule discharged. However, there shall be no order as

to costs.

JUDGE

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*GS.

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