Full Judgment
S.S. Jha, J.
1. This revision is filed against the order dated 2-3-1998 passed by Fourth Civil Judge Class-1, Gwalior in Civil Suit No. 63-B/94.
2. Petitioner has filed a suit for recovery of amount against the respondents with the averment that respondent No. 1 is a proprietorship firm and respondent No. 2 is its sole proprietor. A loan of Rs. 20,000/- was advanced by the plaintiff on 9-9-91 on interest at the rate of 1.25% per month and for the aforesaid transaction a pronote was executed by the defendants in favour of plaintiff. Since the amount and interest was not paid, the suit was filed. The claim of the plaintiff was denied and the defendants denied having received money from the plaintiff. The petitioner placed reliance upon a document, which is written as 'Hundi'. When the document was being exhibited in evidence, the defendants raised a preliminary objection that the document is a pronote and is inadmissible in evidence.
3. Counsel for the plaintiff submitted that this document is a 'Shah Jog Hundi' and it does not require any stamp. The Trial Court held that the document is a promissory note and requires stamp duty under Section 49B of the Stamp Act and the stamp affixed on the document is insufficient. The document is in the nature of promissory note and this document cannot be impounded under Section 35 of the Stamp Act, and refused to exhibit the document.
4. Before entering into the controversy, it will be appropriate to reproduce the said document:--
------------- 1 Re.
'|Rs. 20000=00 | Date: 9-9-91
------------- Due Date 8-12-91
( ) Days Khara without grace after this date We fVdk;k jke ys[kjkt c=k] thokth pkSd] Xokfy;j
of (Rupees chl gtkj dsoy
Being the value received in cash.
C;kt nj 1@25 izfr lSdM+k izfrekg dh nj ls
Address:
(Seal) Tikaya Ram Lekh Raj Batra (Seal)
Jiwaji Chowk, Topi Bazar, For Tikayaram Lekhraj Batra
Lashkar, Gwalior-474001 (MP) Sd/-'
5. The document is written on stamp paper of Re. 1/- and word 'Hundi' is mentioned. Now it is to be determined that whether this document shall fall in the definition of 'Hundi' or 'Promissory-note'.
6. Counsel for the petitioner placed reliance upon the judgment in the case of Mannalal Nanhelal v. Sitambernath Ramhirdelal, reported in 1961 MPLJ 169, and submitted that where the recitals in the document indicated that the executant merely acknowledged his liability for a certain loan, and further he made a promise to pay the amount with interest, it was held that the document was not a promissory-note but was an acknowledgment of liability accompanied by promise to pay under Section 25(3) of the Contract Act, 1 949.
7. Counsel for the petitioner submitted that on bare perusal of this document, it is apparent that after receiving the value of Rs. 20,000/- in cash, the firm has agreed to return the amount with interest at the rate of 1.25% per month. The document was executed on 9-9-1991 and amount was payable on 8-12-1991. Counsel for petitioner placing strong reliance upon the judgment in the case of Mannalal Nanhelal (supra) submitted that the document is not a promissory-note and judgment of Trial Court be set aside.
8. Full Bench in the case of Komalsingh Ju Deo (Raja) v. Rambharosa and ors., reported in 1943 NLJ 76, has held that the Negotiable Instruments Act, 1881, Sections 13(1) and 80 does not apply to 'Shah Jog Hundis'. Full Bench has held that a Shah Jog Hundi which is payable to the respectable holder according to the practice in connection with 'Hundis' is not an ordinary 'Hundi' to which the Negotiable Instruments Act applies. It is not covered by the definition of negotiable instrument in Section 13(1) of the Negotiable Instruments Act, Although many of the incidents which apply to these 'Hundis' are the same as those which apply to instruments governed by the Negotiable Instruments Act that is because of mercantile usage and custom and not because of the Act. Counsel for the petitioner submitted that in the light of the judgment of Full Bench, this document is a 'Shah Jog Hundi'. When a document does not come under either category, not even when read in conjunction with Explanations 1, 2 and 3 to Section 13(1) of the Negotiable Instruments Act, then it will be a 'Hundi'. 'Shah Jog Hundi' is a 'Hundi' payable to the respectable holder thereof. The 'Hundis' were payable to 'respectable holder thereof. The Full Bench has held that the 'Shah Jog Hundis' are not negotiable instruments within the meaning of the Act and it was held that these 'Hundis' differ from bills of exchange. The 'Hundis' are bearer 'Hundis'.
9. The only question involved in the case is whether the document is a 'Hundi' or 'Promissory-note' or 'Bill of exchange' ?
10. Privy Council in the case of Nawab Major Sir Mohammad Akbar Khan v. Attar Singh and ors., reported in AIR 1936 Privy Council 171, has held that where the document reciting that it is receipt executed by two persons for certain amount for and on behalf of another person and amount made payable after two years, rate of interest was mentioned and document was signed by executants; the document was held to be receipt and not promissory note. In this case, it was mentioned that the receipt is hereby executed by H and A, residents of Hoti, for Rs. 43,900; half of which amount comes to Rs. 21,950/- received from the firm of L, for and on behalf of M of Hoti. This amount was payable after two years. Interest at the rate of 5-4-0 per cent per year to be charged. The Privy Council held that this document is not a promissory-note but is merely a receipt containing the acknowledgment of the receipt of amount. Where there is a promise to pay or order some amount or where a person acknowledges to be indebted to third person any particular sum to be paid on demand, for value received is a 'promissory-note'. The promissory-note is payable to order which is expressed to be so payable or which is expressed to be payable to a particular person, and does not convey words prohibiting transfer or indicating an intention that it shall not be transferable.
12. Division Bench of this Court in the case of Prabhunarayan v. Raghubarprasad, reported in 1957 MPLJ-SN 188, has held that 'Hundis' are not liable to stamp duty being excluded under Item 13.
13. In the case of Jogeshchandra Dhar v. Mahammad Ibrahim and ors., reported in AIR 1930 Calcutta 697, the question whether document is a 'Hundi' or is a 'Promissory-Note' was considered. The document in question was described as a 'Hundi' in print and it is mentioned in this case - 'Forty-five days after date without grace we jointly and severally promise to pay to the order of J the sum of one thousand rupees only for value received in cash and that with interest at 3 per cent per annum after due date'. This document was held to be a bill of exchange as defined in Section 5 of Negotiable Instruments Act and it is the choice of the holder of the bill to treat it either as promissory-note or bill of exchange as regard to the provisions of Section 17 of the Negotiable Instruments Act. An instrument not addressed to a drawee can become a bill of exchange if a third person endorses an acceptance which is not inconsistent with the address and that the acceptor might be deemed to have admitted himself to be the party addressed. The endorsee thus becomes liable under the instrument and is estopped from contending that he is not the drawee.
14. Full Bench of Calcutta High Court in the case of Harsukdas Balkis-sandas v. Dhirendra Nath Roy and ors., reported in AIR 1941 Calcutta 498, has held that the word 'Hundi' on the stamp of document cannot determine its character. The provisions of document must be looked into. In this case, the document was executed on a paper on which engraved the form of a stamp of Rs. 2-4-0, which bore the word 'Hundi'. The document ran as follows : 'sixty days after dale without grace we promise to pay to Messrs. Hursookhdas Balkissandas or order at Calcutta the sum of Rs. 2500 only for value received'. The Full Bench of Calcutta High Court held that this document is a promissory-note.
15. In the case of Surajmal v. Kashi Prasad, reported in AIR 1933 Nagpur 389, the document related to dishonourment of 'Hundi' and returned. In this case, it was held that the acceptance must be in writing upon 'Hundi' or bill of exchange.
16. In the case of Tikam Chand v. Laxmichand and ors., reported in AIR 1961 Rajasthan 87, it is held that 'Hundi' payable after specified date is one payable on demand and is exempt from payment of stamp duty.
17. In Civil Revision No. 166 of 1976, decided on 16-12-1983, it is held that 'Shah Jog Hundis' are not negotiable instruments and need not be validated and even no stamp paper is required.
18. Thus, on bare perusal of the document, it is apparent that the party has agreed to pay the bearer an amount of Rs. 20,000/- with interest at the rate of 1.25% per month. The document is a promise to pay or order the sum of Rs. 20,000/- with interest, therefore, the document as described appears to be a Promissory-note because there is a promise to pay after particular date.
19. Section 4 of the Negotiable Instruments Act, 1881 defines 'Promissory note', which is reproduced below along with illustrations :--
'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.
ILLUSTRATIONS
A signs instruments in the following terms :
(a) 'I promise to pay B on order Rs. 500.'
(b) 'I acknowledge myself to be indebted to B in Rs. 1,000 to be paid on demand, for value received.'
(c) 'Mr.B, I O U Rs. 1,000.'
(d) 'I promise to pay B Rs. 500 and all other sums which shall be due to him.'
(e) 'I promise to pay B Rs. 500, first deducting thereout any money which he may owe me.'
(f) 'I promise to pay B Rs. 500 seven days after my marriage with C.'
(g) 'I promise to pay B Rs. 500 on D's death, provided D leaves me enough to pay that sum.' (h) 'I promise to pay B Rs. 500 and to delivery to him by black horse on 1st January next.'
The instruments respectively marked (a) and (b) are promissory notes. The instruments respectively marked (c), (d), (e), (f), (g) and (h) are not promissory notes.'
Illustration (b) provides that when there is an acknowledgment of being indebted for particular sum to be paid on demand, for value received, is also a 'Promissory-note'.
20. It is a settled position that document cannot be determined on the basis of caption written on the document and the document shall be read as a whole to determine its nature. By merely writing a word 'Hundi' on top will not make the document a 'Hundi'. If there is 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, will be a 'Promissory-note'. Mere inscription of word 'Hundi' on the upper part of the stamp does not make the document a 'bill of exchange', when the document is a promissory-note. The real character of document has to be determined by looking to the provisions of document itself. Thus, the essential feature of a promissory note is an express unconditional promise to pay; and it is not enough that the substantial effect of the instrument should be to make the executant liable to pay a sum of money.
21. In the case of Jaisukhlal Deve v. Shankar Theatres (Firm) Amravati and ors., reported in 1982 MPLJ 86, a letter was executed in favour of a money lender, wherein it was mentioned that 'at 90 days after date without grace days we promise to pay to J or order at...... the sum of Rs. 5,000 for value received in cash'. It was held that the document contained a promise to pay and not an order to pay. As such, the document was promissory-note and not a bill of exchange. Thus, in this case, the document was executed after receiving the value in cash and the document was held to be a promissory-note.
22. In the case of Mannalal Nanhelal (supra), it was held that the executant had acknowledged his liability for a certain loan and he had made a promise to pay the amount with interest and the document was treated as acknowledgment of liability accompanied by promise to pay under Section 25(3) of the Contract Act, where as in the case of Jaisukhlal Deve (supra) it is held that when there is a document containing promise to pay and not an order to pay, such document was found to be a promissory-note and not a bill of exchange. In the case of Jaisukhlal (supra) the document was written after receiving the money in cash and there was promise to pay the amount. The document was held to be a promissory-note.
23. Considering the illustration (b) of Section 4 of the Negotiable Instruments Act, it is apparent that any acknowledgment to be indebted for a particular sum to be paid on demand for value received is a promissory-note.
24. Section 5 of the Negotiable Instruments Act relates to 'Bill of Exchange'. The essentials of Bill of exchange are that the instrument must be in writing and the instrument includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded and it should be signed by the maker and there must be an order to pay. However, there are three types of 'Hundi', namely, 'Darshani Hundi', i.e., a Hundi payable at sight; 'Muddati or Miadi Hundi', which is payable after a specified period of time; and, 'Shah Jog Hundi', i.e., a 'Hundi', which is payable by the drawee only to a respectable person thus casting upon the shoulders of the drawee the responsibility to ascertain the respectability of the payee before he makes the payment. Thus, 'Shah Jog Hundi' is a document, which is payable by the drawee only to a respectable person and thereby casting upon the shoulders of the drawee the responsibility to ascertain the respectability of the payee before he makes the payment.
25. On bare reading of the document, the amount has been agreed to be paid by the respondents and on bare reading it is a promissory-note. Even otherwise, promissory note is executed after the amount is received in cash or towards liability of some prior transaction. On bare reading of the document, there is an unconditional undertaking that the defendant-firm has promised to pay or order sum of Rs. 20,000/- to petitioner. Thus, the document is a promissory-note. Mere inscription of word 'Hundi' above stamp is not sufficient to hold the document as a 'Shah Jog Hundi'. The document is a promissory-note.
26. As discussed above, the Trial Court has not committed any error in holding that the document is a promissory note. Revision fails and is dismissed without any order as to costs.
27. Civil Revision dismissed.