- (1.) By way of the instant writ petition, the petitioner has implored to quash and set aside the order dated 17 th August, 2010, whereby the learned Additional District Judge (Fast Track), No.4, Ajmer, allowed the application of the respondent no. 2- defendant filed under Order 13 Rule 6 of CPC and Section 35 of Stamp Act and directed the petitioner-plaintiff to pay 5% stamp duty on amount of Rs. 2 lakhs together with ten times penalty of the amount of stamps.
(2.) Adumbrated in brief, the facts of the case are that the petitioner-plaintiff filed a suit under Order 37 Rule 2 of CPC stating that the petitioner and respondent no. 2 were known to each other and both of them were entailed in a business transaction. It is averred that the respondent no. 2-defendant borrowed Rs. 2 lakhs from the petitioner on 8 th April, 2004 and rendered a promissory note in favour of the petitioner, which termed that whenever the petitioner-plaintiff asked for return of the said amount, he would repay the same. It is alleged that on 24 th February, 2006, the petitioner-plaintiff asked the respondent no. 2 to return the said amount of promissory note, but the respondent no. 2 refused to do so, hence, he filed the aforesaid suit before the competent court.
(3.) During the trial of the suit, the respondent no.2 - defendant filed one application under Order 13 Rule 6 of CPC and Section 35 of the Stamp Act stating that the petitioner-plaintiff had exhibited the promissory note as Exhibit/1 in his affidavit and the cross-examination of the witness was to commence but the said promissory note could not be taken in evidence, as it was not a 'promissory note within the definition of Negotiable Instruments Act and conversely, it was a 'bond under Section 2(5) of Stamp Act, which was insufficiently stamped, hence, the document could be admissible in evidence only after realizing 5% stamp duty of the total value of promissory note. Learned trial court having considered the submissions, allowed the application of the respondent no.2 - defendant on 17th August, 2010, which has been impugned in this writ petition.;