Samrat Mul and Others Vs Indar Mul

@JUDGMENTTAG-ORDER

1. This is a revision directed against the order of the lower Court, declaring a document that was produced by the Plaintiff as a bond. The suit was filed on the basis of dealings between the Plaintiff and the Defendant. In support of the dealings between the parties, the Plaintiff produced an extract from his account book, which contained a recital of the transactions between the parties and under which the Defendant promised to pay the amount that he had borrowed, to the Plaintiff. It was contended by the Defendant in the lower Court that this document was a promissory-note and inasmuch as it did not contain any stamp, it was inadmissible in evidence. The lower Court after going through the contents of the document came to the conclusion that it could not be regarded as promissory-note and declared it to be a bond and levied the stamp duty and the penalty from the Plaintiff. We understand that the stamp duty and the penalty have also been paid by the Plaintiff. The Defendant has come up in revision questioning the order of the lower Court.

2. We have read the document and we are in agreement with the order of the lower Court that it cannot be regarded as a promissory-note. In order to determine as to whether the particular document is a promissory-note or a bond, the intention of the parties is a very necessary circumstance to be taken into consideration, and the test that has been laid down by the Privy Council in determining such a question is that the intention of the parties has to be looked into. This has been laid down by the Privy Council in the case of � AIR 1938 121 (Privy Council) (A). Applying the above test laid down by the Privy Council to the document in question, we find that this document was executed by the Defendant at the time when the loan was advanced and it was never the intention of the parties that i this document should be negotiable. It was to serve as evidence of a debt contracted by the Defendant. Under those circumstances, where it was not intended to be negotiable and where it was only intended to serve as evidence of debt, the document cannot be regarded as a promissory-note. It was argued by the learned Advocate for the Petitioner that if it is not a promissory-note it is at least an acknowledgment of a debt coming within the scope of Art: 1 of Schedule I of the Stamp Act. We are not in agreement with the learned Advocate because we find in the document that there are words promising to pay the debt. It is only where the document does not contain any promise to pay that it can be regarded as an acknowledgment to serve as evidence of such a debt. The fact that it contains a promise to pay the debt would take it away from the category of an acknowledgment of a debt. We. are, therefore, of the opinion that the order of the lower Court cannot be interfered with. This revision is, therefore, dismissed with costs. Advocate''s fee rupees thirty.