JUDGMENT - D.R. DHANUKA, :--This appeal is preferred by the original plaintiff against decree dated 28th August 1977 passed by the Court of the Joint Civil Judge, S.D. Solapur at Solapur in Special Civil Suit No. 80 of 1975. By the said decree, the trial Court dismissed the suit of the plaintiff with costs.

2. On or about 19th April, 1978, the plaintiff filed the above referred suit against the defendant seeking to recover from the defendants a sum of Rs. 10,000/- with further interest and cost of the suit. It was averred in the plaint that the defendants had executed a promissory note in favour of the plaintiffs being promissory note dated 19th April, 1972 for valuable consideration and defendants had failed to pay the amount due and payable on the said promissory note. With the leave of the Court, the plaintiff amended the plaint. By the said amendment, it was pleaded by the plaintiff that if the said promissory note was held to be non-admissible in evidence, the plaintiff was nevertheless entitled to recover the said amount from the defendants on the basis of the original consideration as the plaintiff had advanced the said amount to the defendants in cash on 19th April, 1972 and the defendants had received the said amount in cash from the plaintiff.

3. The first question which is required to be decided in this appeal is as to whether the trial Court was justified in taking the view that the said promissory note was inadmissible in evidence on the ground that the said promissory note was not duly stamped as required by law. The learned Counsel for the appellant has been good enough to prepare a compilation consisting of a copy of the said promissory note dated 19th April, 1972, the same being in Marathi and also the translation thereof. There is no dispute about the correctness of the translation of the said document. The executants of the said document have described the said document as a promissory note. It is provided in the said promissory note that the defendants shall be liable to pay the sum of Rs. 10,000/- to the plaintiffs first within six months and thereafter within further six months at any time on demand. The amount of the said promissory note was payable by two instalments as aforesaid. The relevant portion of the promissory note as translated by the learned Advocate for the appellant reads as under :-

"We the promissorrys are executing this promissory note as we have received from you for our business a sum of Rs. 10,000/- (Rupees Ten Thousand only) in cash and we will repay the same to you first within 6 months and thereafter within further 6 months any time or at any place as may be demanded by you without any dispute and without making any pretext, with interest in full satisfaction."

The amount of the said promissory note was not made payable immediately on demand but was made payable first within six months of the execution of the promissory note and thereafter within further six months as stated above.

4. Article 49 of Schedule I of the Stamp Act which is as follows:-

Description of Instrument Proper stamp duty

49. Promissory note (as defined Section 2(22).

(a) When the amount of value does not exceed

Rs. 250/- Ten naya paise.

(ii) When the amount or

value exceeds Rs. 250 but does

not exceed Rs. 1000 Fifteen naya paise.

(iii) In any other case. Twenty five naya paise.

(b) When payable otherwise

than on demand. The same duty as a

Bill of Exchange

No. 13) for the same

amount payable otherwis

than on demand."

The suit promissory note was not made payable immediately on demand. The amount of the said promissory note was recoverable by installments. No demand would be made immediately for execution of promissory notes. No demand could be made in respect of the amount due and payable under the said promissory note till the expiry of a particular period. The learned trial Judge took the view that the said promissory note was liable to be stamped as required by Art

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