An instrument containing an unconditional undertaking to pay a certain sum of money to a certain person satisfies the requirements of section 4 of the Negotiable Instruments Act, 1881, and is a promissory note, even if it is not payable to order or bearer.

JAVKSON, A. J. C., J.

( 1 ) THIS revision petition is directed against an order of the First Additional Chief Judge, City Civil Court, Hyderabad, given on 16 the January, 1965. It arises in the following circumstances:

( 2 ) RESPONDENT No. 1 instituted a suit for the recovery of some money due on a promissory note executed by the petitioner on 2/01/1962 in favour of respondents 2 and 3. Respondents 2 and 3 assigned the promissory note in favour of the 1st respondent-plaintiff by an endorsement. One of the objections taken by the 1st defendant i. e. , the petitioner before me, in he written statement is that the suit document is a bond and not a promissory note. It was the further contended that the endorsement amounts to an assignment of an actionable claim. The argument therefore, was that both the document as well as the endorsement ought to have been executed on the stamp paper and that since they are not so executed, the plaintiff-respondent No. 1 must pay the penalty for both these documents apart from the stamp duty payable thereon.

( 3 ) IN pursuance of this objection, the trial Court framed issued 2, 3 and 4. These issues were considered first. The trial Court reached the conclusion that the suit document is a promissory note within the meaning of section 4 of the Negotiable Instruments Act (hereinafter called the Act) and therefore, could be transferred by an endorsement under the provisions of the same Act and that the promissory note therefore, was properly stamped and the endorsement does not require any stamp and hence the plaintiff need not pay any stamp duty o firm whether

( 4 ) THE contention of Mr. C. Narasimhacharya, the learned Counsel for the petitioner, is that the suit document is a bond and on a promissory note. It was alternatively contended that even if it is not a bond, it is an agreement but never a promissory note. (4) In order to appreciate the implications of this contention, it is necessary to look into the document. The original is in Urdu and the accepted translation of it is as follows:-"i. Bahadurunnissa Begum, daughter of. . . . . . executed and promise that a sum of I. G. Rs. 71,000. . . . . has been obtained by me under the heading of the room from Mr. Mohammed Moinuddin Ali Khan. . . and Nawab Syed Mohammed Ali Khan the grand-son of etc. ,. . . . in cash and I agree to pay thereof; that in future, on demand, the principal will be paid to the said person in lump sum and this promote will be taken back by me. "

( 5 ) NOW a promissory note as defined in the Indian Stamp Act is as follows:-"2. (22) Promissory note:- 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. "it will thus be plain that under sub-section (22) of section 2 of the Indian Stamp Act, a promissory note has been defined to be an instrument answering its definition as given in the Act plus something more, that is, an instrument will be a promissory note under the Indian Stamp Act if it promises the payment of any sum of money out of any particular sum which may or may not be available, or upon any condition or contingency which may or may not be performed or happen. Admittedly the latter part of the definition of promissory note appearing in section 2 (22) of the Indian Stamp Act is not relevant for the purposes of this case. We have therefore to look to the definition of promissory note as is given in the Act. Under section 4 of after the pemissory note is defined to be an instrument in writing (not being a bank-note or a currency note) containing an unconditional undertaken 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. On a close and analytical reading of section 4 of the Act it will be evident

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