ORDER
Rajesh Balia, J.
1. These two revision petitions arise in the identical facts and circumstances giving rise to common issue. Hence they are decided by a common Order.
2. One Kundanmal, who is petitioner in both the revisions filed two Civil Suits. Civil Suit No. 55/90 against Nand Kishore and Civil Suit No. 56/90 against Asha Ram. Plaintiff and defendants are real brothers. Each Suit is for recovery of Rs. 15,000/- based on identical pleadings.
3. These two revision petitions are directed against the orders dated September 9, 1992 passed by the Additional District Judge No. 2, Jodhpur in Civil Suits Nos. 55/90 and 56/90 by which the applications of the plaintiff-petitioner seeking permission to lead secondary evidence, in respect of a document executed by respective defendants in each case on April 9, 1987 and alleged to be in possession of the defendant or has been destroyed by him was rejected.
4. The trial Court rejected the application of the plaintiff-petitioner on the ground that the alleged document properly constituted makes it as promissory note and that being insufficiently stamped is not admissible in the evidence under Section 35 of the Stamp Act and further held that since primary evidence itself was inadmissible, no secondary evidence in that regard can be permitted to be led.
5. A preliminary objection was raised by the learned counsel for the defendant-respondent that revision petition is not maintainable. His contention was that particular evidence was admissible according to law or not is a question which the trial court had jurisdiction to decide and if any error has been committed in deciding that question, it cannot be said that such error was in any way an error in the manner of exercise of jurisdiction. Therefore, according to the learned counsel, the decision on the point that a document in question was inadmissible being a promissory note is not revisable under Section 115 of the Code of Civil Procedure (for short hereinafter to be referred as 'the Code'). He placed reliance on Harak Chand v. State of Rajasthan, 1970 Raj LW 320, a Full Bench decision of this Court.
6. It is true that in the aforesaid Full Bench decision of this Court it has been laid down that such erroneous decision does not amount to be an error in the manner of exercise of jurisdiction.
7. However, the same principle cannot be extended to a case where such decision is challenged as ancillary decision affecting the ultimate decision based on such erroneous finding. It is one thing to say that court has wrongly refused to admit certain evidence rightly or wrongly and it is quite another thing to say that ultimate decision arrived by the court is vitiated because of the reason that in arriving at such decision, the court has relied on or founded its ultimate decision on erroneous decision about admissibility of a document. In the lalter case it is the manner for arriving at a final decision under challenge and if the manner in which final decision has been arrived is erroneous, that will be an error in the manner of exercise of jurisdiction.
8. In Shaik Jaffar Shaikh Mahmood v. Mohd. Pasha Hakkani Saheb, AIR 1975 SC 794, their Lordships of the Supreme Court while analysing the revisional power of the High Court under Section 26(c) of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954, observed as under (at p. 796 of AIR) :
'The High Court under Section 26(c) has to see whether there is any error of jurisdiction committed by the Controller or by the appellate authority in passing the order or whether there is any such manifest error of procedure committed by the courts as may affect the ultimate decision resulting in gross injustice.'
9. The Supreme Court was interpreting the meaning of term 'acted illegally' or 'with material irregularity' used in the Hyderabad Act, which is similar to the terms used in Section 115 of the Code layingdown the revisional jurisdiction of the High Court under the Code.
10. In the like circumstances in the case of Potula Subba Rao v. G. Ganga Rao, AIR 1985 Orissa 140, the question arose in the context whether an ultimate finding while passing a decree arrived at by the Court by holding certain evidence inadmissible although the same was admissible, the court came to the conclusion that in exercise of its revisional jurisdiction under Section 115 of the Code, the court can interfere if it comes to the conclusion that the appellate court has erroneously refused to consider the material evidence which has influenced the final order that has been passed.
11. In context of the present controversy, the court was to decide whether the plaintiff be permitted to lead secondary evidence in respect of the alleged document. The final decision of the court to permit or not to permit the secondary evidence, if it is based on erroneous consideration of admissibility of primary evidence, it will be an illegality and irregularity in the manner of exercise of its jurisdiction to permit or not to permit the litigant to lead secondary evidence. In such cases it will be open to the Court to exercise power under Section 115 of the Code.
12. In that view of the matter, the preliminary objection raised by the learned counsel for the non-petitioner is overruled.
13. Coming to the merits of the case, it would be apposite to refer to the plaintiff's case concerning the said document.
14. The plaintiff filed the present suit for recovery of a sum of Rs. 15,000/- from the defendant alleging that there was a family settlement between the plaintiff and brothers on April 9, 1987 and in the course of that family settlement, certain documents were executed in which one of the document is the disputed document. According to the plaintiff, as a result of the family settlement amongst other documents, the defendant executed a receipt for Rupees 15,000/-acknowledging that he has received consideration thereof. The receipt was scribed by Daya Ram, brother-in-law of plaintiff and defendants and signed by defendant. The defendant in his written statement denied the execution of the said document. He also, pleaded that document is a promissory note and is insufficiently stamped. The text of said document is reproduced below:--
phBh ,d fy[k nksuh vk'kkjke csVkdklhjke th jk vkSfl;k okyk vkxs HkkbZ dqUnuey csVk dklhjke th jk vkSfl;k okyk usfy[k nksuh ds rqekjs dus lw :ih;k 15]000@&iujs; gtkj jksdMk fyuk frdk ikNkekl ,d lwr 9&5&87 us ns nslks vkxs jklh ugha A lEcy 2043 jk psr lqn 10rkjh[k 9&4&1987 nk /kwr n;kjke jk Ns vk'kkjke js dus lw fy[kh gSa A
LVkEi 20 iSls
,l- Mh-@&vk;'kkjke lksuh
9&4&87
15. According to the learned counsel, the aforesaid document amounts to a receipt in the form of a letter and nothing more. It was not intended to be a negotiable instrument. He further contends that whether adocument was executed as a receipt or promissory note, it has to be construed in accordance with the primary intention of the parties whether they intended instrument to be promissory note or a receipt. He further contends that merely because a instrument which was intended by the parties to act as a receipt also contains a promise to pay, it does not make the document a promissory note.
16. On the other hand it was contended by the learned counsel for the defendant that the aforesaid document has all the ingredients and contents of the promissory note and therefore one need not look beyond the document for its construction. According to him, this is a document for payment of a specific sum of money to a certain person by a fixed date. Since it contains a promise to pay a specific sum of money to a specific person, it amounts to a promissory note within the meaning of Section 4 of the Negotiable Instruments Act, and under Section 13 of the Act, there being no condition to the contrary in the document, it is presumed to be negotiable also. Therefore, document if a promissory note is admittedly insufficiently stamped cannot be taken in the evidence even on payment of deficit stamps and penalty thereon. It may be observed here that the document which is in the form of a letter acknowledging a receipt of Rs. 15,000/-is affixed with 20 paisa revenue stamp as per the photo copy of it, produced by the plaintiff along with plaint.
17. Learned counsel for the petitioner further relied on a Full Bench decision of this Court passed in Nanga v. Dhanna Lal, AIR 1962 Raj 68, for the proposition that a document besides fulfilling the requirements as laid down in Section 4 of the Negotiable Instruments Act must also be intended by the parties at the time of its execution to be a promissory note as understood by commercial would (world?) in its popular sense.
18. I have given my careful consideration to the rival contention raised before me.
19. It would be profitable to quote here the relevant provisions of the Negotiable Instruments Act.
Section 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.
Section 13. Negotiable instrument.-- (1) A 'negotiable instrument' means a promissory note, bill of exchange or cheque payable either to order or to bearer.
Explanation (i) -- A promissory note, bill of exchange or cheque 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 contain words prohibiting transfer or indicating an intention that it shall not be transferable.
(i) to (2)....................................
20. On analysis, the aforesaid provisions indicate that in order that a document should fall within the definition of 'promissory note', it must conform to the following conditions viz.
(1) It should be in writing,
(2) It must contain an unconditional undertaking by the maker of the document,
(3) Such unconditional undertaking must be to pay certain sum of money only,
(4) that such undertaking to pay certain sum of money must be to a certain person or to the order of that person or to the bearer of the instrument.
21. Explanation (i) to Section 13 however envisages that if the document conforms to the aforesaid conditions and if the document bears no words prohibiting transfer or indicating the intention that it will not be transferred, the document must be deemed to be negotiable. No specific form is needed except that the document should be in such a form that it should be ordinarily acceptable by a man of commerce to be a promissory note, intended to be negotiable.
22. For the purposes of Stamp Act, promissory note has been defined under Section 2 as under:--
Promissory Note 2(22):-- 'Promissory note' means a promissory note as defined by the Negotiable Instruments Act, 1881;
it also includes a note promising the payment of any sum of money out of any particular fund which may or may not be available, or upon any condition or contingency which may or may not be performed or happen;
23. From the perusal of above definition, it appears that the definition of a promissory note in the Stamp Act for the purposes of stamp duty is wider than the definition given in Section 4 of the Negotiable Instruments Act but it is only to the extent that in order to fall within the extended meaning a document should be a promissory note in all respects except for the contingencies affecting the payment in the two cases envisaged in the proviso in the ordinarily mercantile sense. The extended meaning only extends to a document (i) which includes a promise to pay the sum named out of particular funds and such amount may or may not be available with the fund or (ii) where promise to pay a sum depends upon happening of condition or contingency which may or may not happen. When payment is not dependent upon any condition envisaged above, the inclusive definition does not become operative.
24. In Nawab Major Sir Mohammad Akbar Khan v. Attar Singh (1936) 63 Ind App 279 : (AIR 1936 PC 171), their Lordships observed as under :
'If this document is otherwise within the definition of a promissory note, it would seem that it must be negotiable, for there appear to be no words prohibiting transfer, or indicating an intention that it should not be transferable.'
'Their Lordships prefer to decide this point on the broad ground that such a document as this is not, and could not be, intended to be brought within a definition relating to documents which are to be negotiable instruments. Such documents must come into existence for the purpose only of recording an agreement to pay money and nothing more, though, of course, they may state the consideration. Receipts and agreements generally are not intended to be negotiable, and serious embarrassment would be caused in commerce if the negotiable net were cast too wide. This document plainly is a receipt for money, containing the terms on which it is to be repaid. It is not without significance that the defendants who drew it, and who were experienced moneylenders, did not draw it on paper with an impressed stamp, as they would have had to if the document were a promissory note and that they affixed a stamp which is sufficient if the document is a simple receipt. Being primarily a receipt, even if coupled with a promise to pay, it is not a promissory note.'
25. From the aforesaid decision, it is apparent that notwithstanding that a document contains a promise to pay but if it is primarily intended to be a receipt and not intended to be negotiable in the ordinarily mercantile sense, the document does not become a promissory note within the meaning of Negotiable Instruments Act. In the said case affixing of a stamp sufficient for a receipt by man of business was taken to be a relevant consideration of great importance in gathering the intention of the parties.
26. Again in Lala Karam Chand v. Firm Mian Mir Ahmad Aziz Ahmad, AIR 1938 PC 121, the Board reiterated the view taken in Mohd. Akbar Khan's case (AIR 1936 PC 171). After taking notice of the fact that a document to be quoted hereinafter contains a promise to pay and that there is strong current of Indian Authorities to the effect that such document comes within the mischief of Section 35 of the Stamps Act, observed as under :
'........since the judgment of the Judicial Commissioner's Court, a decision of this Board,(1936) 63 Ind App 279 : (AIR 1936 PC 171), has made it clear that the shadow resting upon these exhibits throughout the case was unreal; that documents of this nature which were clearly never intended to be negotiable instruments at all are not promissory notes and are not, therefore, for want of a stamp, inadmissible in evidence.'
27. The relevant extract of document in question was reading as under:--
'Received from you this 5th day of Asuj, 1986, Sambat corresponding to 20th September, 1929 a cheque for Rs. 10,000/- drawn by you on Messrs. Grindlay & Co., Ltd., Peshawar. The amount would be repaid with interest thereon at the rate of Rs. 11-4-0 p.c. Time ten months. The principal amount will be paid with interest after ten months from this date.
Received from you this 23rd of Asuj, 1986, Sambat corresponding to 8th October, 1929, cheque No. 50284 dated 8th October for Rs. 10,000/- drawn on the Imperial Bank of India, Limited, Peshawar. The amount to be paid back with interest at the rate of Rs. 11.4.0 p.c. after ten months.
This principal amount with interest thereon to be repaid after ten months from this date.'
28. The Court held the document not to be a promissory note but merely receipt.
29. Without multiplying the number of decisions on the point, it will be relevant to refer to the two decisions of this Court enunciating the general principles in this regard after detailed review of earlier decision of the courts in England as well as in India including the two decisions referred to above.
30. A Division Bench of this Court in Gordhansingh v. Suwalal and Kalyanbux AIR 1959 Raj 156, with reference to Section 4 of the Negotiable Instruments Act, held as under :
'It will be seen that in order that a document may fall within the definition of 'promissory note' contained in the Negotiable Instruments Act, it is necessary that there should be:--
(i) an unconditional undertaking to pay,
(ii) the sum should be a sum of money and should be certain,
(iii) the payment should be to or to the order of a person who is certain, or to the bearer of the instrument, and
(iv) the maker should sign it.'
31. The Court further went on to observe as under with reference to the requirements under Stamps Act:--..... 'But besides fulfilling the terms of the definition, the instrument must pass three further tests--
(1) the promise to pay must be the substance of the instrument.
(2) there must be nothing else inconsistent with the character of the instrument as substantially a promise to pay, and
(3) the instrument must be intended by the parties to be a promissory note.'
32. To this conclusion, the Court had arrived at after review of a large number of decisions including the Privy Council decisions in Mohd. Akbar Khan's case (AIR 1936 PC 171).
33. The question again cropped up before a Full Bench of this Court in Nanga v. Dhanna Lal, AIR 1962 Raj 68, Justice Bhargava, with whom the other two learned Judges concurred in their separate judgment stated the law as under (at p. 77 of AIR):
'I am therefore, of the view that a promissory note besides fulfilling the requirements as laid down in Section 4 of the Negotiable Instruments Act must also be intended by the parties at the time of its execution to be a promissory note as understood by commercial persons in its popular sense which means that unless, it falls within the exception provided in the wider definition of the Stamp Act, or is otherwise expressly or by implication made not transferable instrument, if the instrument does not fall within the above mentioned exceptions and does not stand the test of negotiability, it will not be a promissory note even though it contains as unconditional undertaking to pay money.'
34. From the above, it is clear that in order to find out whether a particular document is a promissory note or not, the intention of the parties at the time of execution of the document is to be looked into with reference to the substance of the document, the surrounding circumstances in which the document has been executed and its negotiability in the popular sense, whether the document was intended to be a promissory note or was intended to be a mere acknowledgment of a debt or receipt of consideration.
35. Thus, it is the question of fact in each case whether a particular document is primarily an acknowledgment of debt or receipt or a promise to pay the certain amount.
36. If the document in question is to be read in the light of the principle enunciated above, it will be seen that it is in a form of a letter which opens with acknowledging receipt of Rs. 15000/- on April 9, 1987 by the defendant. The recipient further states that the amount shall be paid by him by May 9, 1987 and will not be kept beyond that date. It was affixed with a stamp of 20 paisa as was payable on a receipt. The surrounding circumstances in which the document was alleged to have been executed is that as a result of certain family settlements between the parties concerning the family properties on April 9, 1987, the document was written in acknowledgment of receipt of consideration containing an agreement to repay the amount within time stated in the document by the executant. The document was kept in the custody of parties father because the formalities have not been completed in respect of family settlement that has taken place on April 9, 1987. The receipt was kept with the father of the parties until the completion of such formalities and it is because of this reason the plaintiff alleges that main receipt is not in his possession and it has either been destroyed or has come in possession of the defendant. He was in possession of only the photocopy of the document which has been produced. The defendant has not denied the factum of family settlement on April 9, 1987. He merely states that exact date of settlement he does not remember. He has denied the execution of document by him. In these circumstances, for the present purposes, it has to be assumed, that if the document is proved to be executed by defendant, it was executed as a part of process of family settlement. The parties in these circumstances could not have intended to bring into existence a negotiable instrument in commercial sense. Nor it is the document in the form in which a document ordinarily intended to be in negotiable in the popular commercial sense by a common mercantile man is written. Moreover, though affixing of a particular stamp is not a conclusive proof of nature of document, but is a relevant consideration about the intention of the parties as to what the parties intended the document to be. The parties are members of a business community. The document bears a stamp of 20 paisa which is requisite for a receipt. By affixing a stamp of 20 paisa in a document which starts with recital of receipt of consideration with a promise to pay Rs. 15000/-by May 9, 1987,promise which is otherwise inherent in every receipt of amount as a loan or deposits, gives a strong clue to the intention of the parties that the parties were aware with the stamp law and their primary intention was to execute the document as an evidence of receipt of Rs. 15000/ - only by the executant with an agreement to pay the amount within stipulated time, and not beyond, by the executant and was not intended to be negotiable instrument.
37. In Mohd. Akbar Khan's case (AIR 1936 PC 171), the Privy Council has also laid great stress on the fact of affixing stamp sufficient for receipt on the document by the executent is a strong circumstance to draw inference that the person writing the document intended it to be as a receipt and not as a promissory note though it may incidently contained a promise to pay. The Court of Appeal applied the principle enunciated in Mohd. Akbar's case (AIR 1936 PC 171) in Claydon v. Bradley (1987) 1 All ER 522, to a document which reads as 'Received from Mr. and Mrs. T. Claydan the sum of 10000 (Ten Thousand Pounds) as a loan to be paid back in full by 1st July, 1983 with interest rate of 20% (Twenty per cent) per annum' by holding the document to be merely a receipt which was not intended to be negotiable.
38. In the totality of circumstances, I am of the opinion, that the document in question quoted above, cannot be treated as a promissory note, but has been written by the executant primarily as a receipt of consideration with an agreement to repay the same by a fix date and not later. Applying the test of primary intention of the parties as to substance of document, it must be held to be a receipt with an agreement to pay the amount within the stipulated time.
39. Once it is concluded that document in question is not a promissory note, the permission to lead secondary evidence cannot be refused merely on the ground of the inadmissibility of the primary evidence on I account of provisions of Section 15 of the Stamp Act. It may be noticed that a document which is not a bill of exchange or promissory note, even if insufficiently stamped can be admitted in evidence on payment of penal stamp duty as per the provisions of Section 35 of the Stamp Act.
40. As a result, these petitions are allowed and the order dated September 9, 1992 passed in Civil Suit No. 55/90 and the Order dated September 9, 1992 passed in Civil Suit No. 56/90 are set aside. The trial Court is directed to consider the application of the petitioner for seeking permission to lead secondary evidence in each case afresh.
41. There will be no order as to costs.