- (1.) THIS second appeal arises out of a suit whereby the plaintiff claimed a money decree against the defendant on the ground that the latter had borrowed certain amounts from the former. The plaintiff claimed the principal sum of Rs. 2000 with interest at the rate of 18% per annum. The defence was that there was, in reality, no borrowing and that the document, on which the plaintiff placed reliance, (which has been described as a Sarkhat) was executed by the defendant but with some different purpose and not as evidencing the alleged borrowings set up by the plaintiff. It was also contended that the document in question relied on by the plaintiff really amounted to a pronote in law and was inadmissible in evidence on account of deficiency of stamp.
(2.) THE trial court framed the necessary issues, tried the suit and decreed the same. An appeal filed in the lower appellate court failed and now the defendant has come up in the instant second appeal and in support thereof Sri V. K. S. Chaudhary, learned counsel for the defendant-appellant, has raised the following contentions before me :- (1) His client was entitled to the benefit of U. P. Ordinance No. 13 of 1977. Time was granted to the learned counsel to get the necessary instructions from his client on 29th July, 1977. However, no such application has been moved, as was directed to be filed in case the defendant-appellant wanted to take the aid of the said Ordinance. THE learned counsel has conceded before me today that his client is, therefore, not entitled to seek the advantage of the said Ordinance. (2) It was next contended that the document in question was a pronote and, as such, a negotiable instrument in law. It was also contended that in view of its being a pronote, it was not properly stamped and, therefore, inadmissible in evidence under the Stamp Act. It was also argued that as it was a negotiable instrument therefore, under S. 80 of the Negotiable Instruments Act, the defendant- appellant was not liable to pay interest at more than 6% per annum in view of the fact that the document was silent in regard to the interest. (3) THE third contention was that no interest was payable by the defendant-appellant when the document did not make any mention about any interest and it was contended that the plaintiff was not entitled to lead oral evidence on the question of the alleged contractual rate of interest. In this connection, counsel referred to S. 92 and its second proviso in the Evidence Act. Sri S. N. Upadhyaya, learned counsel for the plaintiff respondent, contended that the document was not a negotiable instrument under the Negotiable Instruments Act. It was either a receipt or an acknowledgment of liability. He further submitted that in view of S. 36 of the Stamp Act, it was not open to the defendant-appellant to question the admissibility of the document in question on the ground of deficiency of stamp inasmuch as the said document was duly admitted in evidence after the plaintiff- respondent had made good the deficiency in stamp along with the payment of penalty, as required to be done under proviso (a) of S. 35 of the Stamp Act. Counsel relied on Javer Chand v. Pukhraj Surana (AIR 1961 SC 1655). So far as the payment of interest is concerned it was contended by the counsel for the plaintiff-respondent that the courts below have returned a finding of fact about the agreed rate of interest and the said finding cannot be disturbed in the second appeal. It has also been contended that the oral evidence was rightly admitted on the question of the interest. In my opinion, no interference is called for in the second appeal. In AIR 1961 SC 1655 (supra), after reproducing S. 36, it was laid down as follows (at pp. 1656-57) :- " That section is categorical in its terms that when a document has once been admitted in evidence, such admission cannot be called in question at any stage of the suit or proceeding on the ground that the instrument had not been duly stamped. The only exception recognised by the section is the class of cases contemplated by S. 61, which is not material to the present controversy. S. 36 does not admit of other exceptions. Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the Court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Section 35 is in the nature of a penal provision and has far-reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. The record in this case discloses the fact that the hundis were marked Exs. P-1 and P-2 and bore the endorsement ' admitted in evidence' under the signature of the court. It is not, therefore, one of those cases where a document has been inadvertently admitted, without the Court applying its mind to the question of its admissibility. Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, S. 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid it is not open either to the trial court itself or to a court of appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction." The said case related to a Hundi which is a negotiable instrument. Therefore, it seems that irrespective of the nature of the document, if the same has been admitted in evidence. S. 36 will be applicable to such a situation. In this view of the matter, therefore, when the plaintiff paid the penalty and made good the deficiency when called upon to do so and when the document was formally exhibited with exhibit mark No. 1, it should be held that S. 36 of the Stamp Act bars a contention which is now sought to be raised in appeal on the ground of the alleged deficiency in stamp.
(3.) I also do not agree with the learned counsel that the document in question is a pronote. In S. 4 of the Negotiable Instruments Act, a pronote is defined as follows :- " 4. ' Promissory note' . - A ' promissory note' is an instrument in writing (not being a bank note 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." In Bachan Singh v. Ram Awadh (AIR 1949 All 431) a Division Bench laid down as follows :- " In order to find out whether an instrument is a promissory note or not, its terms must be examined. There must be an express undertaking to pay the amount mentioned in the instrument before it can be held to be a promissory note. A mere implied undertaking, by the use of the word ' debt' or ' pronote' in the instrument is not sufficient.";