- (1.) THE plaintiff sued the defendants to recover Rs. 1. 400/-as principal, with Rs. 300/- as interest, a total of Rs. 1,700/-, on the basis of what he himself described in his plaint as a promissory note of Poh Badi 4. 2015 Bk. , corresponding to december 30, 1958. The document is a separate piece of paper and bears the stamp of 20 Paise. If it is a promissory note, the stamp should have been of 25 paise, and, if it is an acknowledgment, it should have been of 10 Paise.
(2.) THE language of the document is --"age rupya chuda sau (ank 1400/-) rokri liya jia ka biaj dar 12 ane sainkra dena mange tab dena. " The ending words 'mange tab dena' in English translation mean 'payment to be made when demanded'. An objection being raised on the side of the defendants as to the admissibility of this document in evidence on the ground that it being a promissory note does not bear proper stamp and hence is not admissible in evidence, it prevailed with the learned trial Judge on the ground that the document has in Et promise by the defendants to pay the amount stated in it on the demand of the plaintiff. So the learned trial judge dismissed the claim of the plaintiff by his judgment and decree of March 27, 1963. In appeal, the learned District Judge was of the opinion that the words 'mange tab dena' in the document did not import any promise to pay and were merely a recital of liability of the defendants to pay. He sought support for his view from Firm Ratanji Bhagwanji and Co. v. Prem Shanker, AIR 1938 All 619, in which this is what the learned Judge observed at page 620- "the document of acknowledgment, dated 30th November 1932, is in these terms: i have taken from you Rs. 1000 on 19th January. 1932, and Rs. 100 on 3rd February, 1932, total Rs. 1100. Whenever you ask for it I have to pay it together with interest. (The actual words are: jab mango tab biyaj sahit deneka hai ). Below this is affixed a one anna stamp and on the stamp appears the signature of Jata Shanker on behalf of the firm. Although In its judgment the learned Munsif held that this document is a promissory note, the endorsement on the back of it in the handwriting of the learned Munsif himself is as follows: "this is an acknowledgment and need not be impounded'. This endorsement is dated 14th December, 1935. the date on which the judgment in the case was pronounced. The endorsement was made in consequence of a report by the office that the document was a promissory note and should have borne a stamp of four annas, but as it bore a stamp of only one anna it was liable to be impounded. The lower appellate Court does not appear to have considered whether this document is a promissory note or a mere acknowledgment. In my opinion it is not a promissory note because it does not contain an unconditional undertaking to pay. It only acknowledges that the two items of money mentioned therein have been borrowed and that the executant has to repay them on demand. There is no promise to pay, but only an admission of liability to pay. I translate the words deneka hai as 'i have to pay or I am liable to pay' and not as 'i promise to pay'. " So the learned Judge accepted the appeal of the plaintiff and remanded the case back to the trial Court for disposal of it in accordance with law after admitting the document in question in evidence. In second appeal by the defendants, the learned Single Judge has by his judgment and decree of October 7. 1964. reversed the order of the first appellate Court, restoring the decree of the trial Court, and thus dismissing the suit of the plaintiff, being of the opinion that the words as referred to above in the document mean promise to pay on demand. The learned single Judge has considered not only Prem Shanker's case. AIR 1938 All 619 but also a few other cases to which reference will presently be made. This is a plaintiff's appeal under clause 10 of the Letters Patent from the judgment and decree of the learned Single Judge.
(3.) SO the only question for consideration is whether the document in question is or is not a promissory note, or whether it is an acknowledgment? In Section 4 of the negotiable Instruments Act, 1881 (Act 26 of 1881), the expression 'promissory note' is defined in this manner--"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''. Illustration (b)to this section says -- "i acknowledge myself to be indebted to B in Rs. 1,000 to be paid on demand, for value received. " It is apparent that if the acknowledgment of indebtedness is in a defined sum of money payable on demand that is enough and the document need not necessarily say that the debtor promises to repay the amount. Here the document is an instrument in writing, it contains an unconditional undertaking to pay because the payment is to be made under it by the defendants to the plaintiff on demand, which may have proceeded immediately the next moment this document came into existence, it is signed by the maker, and it says clearly that a certain defined sum was to be paid to the plaintiff by the defendants under this instrument. It fulfils all the requirements of Section 4 of Act 26 of 1881, and squarely comes within the scope of Illustration (b) to that section.;