D. G. KARNIK, J.

( 1 ) HEARD the learned counsel for the parties.

( 2 ) THE learned counsel for the plaintiff has filed on record compilation of original documents on 13th November, 2003. The compilation is marked as Exhibit-A only for the purpose of identification.

( 3 ) THE first document produced in the compilation is a document styled as "inter corporate Deposit Agreement" dated 27th february, 1998. It is a document executed between the plaintiff and the defendant the recital clause in the agreement states that the defendant was in need of financial assistance and the plaintiff agreed to grant to the defendant Inter Corporate Deposit of Rs. 4,00,000/- Paragraph No. 4 of the operative part of the agreement states that the inter Corporate Deposit of Rs. 4,00,000/- was given to the defendant by cheque dated 27th February, 1998. Clause Nos. (5) and (6) of the document are material and read as under : (5)"the borrower shall repay the said icd of Rs. 4,00,000/- (Rupees Four lakhs only) together with the interest thereon on or before 28-4-98. " (6) The borrower, shall so long as the ICD remains unpaid, pay interest thereon or the balance thereof due from time to time at the rate of 24% per annum. If the said interest is not paid accordingly the borrower shall pay penal interest at the rate of 3% interest per month to be compounded monthly from the date of default. "

( 4 ) THE document is signed by parties. The plaintiffs signature is attested by one witness and defendants signature is attested by another witness. Though the document is styled as "inter Corporate Deposit agreement", in my opinion, it is squarely covered by the definition of a bond. Clause (c) of Section 2 of the Bombay Stamp Act which reads as under : "bond includes (I) any instrument whereby a person obliges himself to pay money to another. On condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be : (II) any instrument attested by a witness and not payable to order of bearer, whereby a person obliges himself to pay money to another; and (III) any instrument so attested whereby a person obliges himself to deliver grain or other agricultural produce to another" (Explanation being not material for deciding the controversy before me, is omitted)

( 5 ) UNDER sub-clause (ii) of clause (c), any instrument attested by a witness which is not payable to an order or bearer, whereby a person obliges himself to pay money to another is clearly a bond. The present instrument is attested by a witness, is not payable to the bearer and creates an obligation on the defendant to pay the principal sum of money of Rs. 4,00,000/- together with interest, and enhanced interest in case of default, to the plaintiff who is the lender.

( 6 ) THE learned counsel for the plaintiff relies upon a judgment of this Court in Patel stone Trading Co. v. Ram Sing reported in air 1975 Bom 79. In paragraph No. 4, the learned single Judge observed : the real test to decide as to whether a particular document is a bond or not is to find out after reading the document as a whole as to whether an obligation is created by the document itself or it is merely an acknowledgment of a pre-existing liability. If there is merely an acknowledgment of pre-existing liability which could have been enforced apart from the document itself, then the matter stands on a different footing. But if the document creates an obligation in itself with an express promise for payment of an amount, in my opinion such a document will have to be termed as a bond within the meaning of Section 2 (c) (ii) of the Bombay stamp Act. " the judgment draws a distinction between a document creating an obligation and a document which is merely an acknowledgment of a liability. The former is a bond while the latter is not.

( 7 ) LET me, therefore examine whether the inter Corporate Deposit Agreement creates an obligation or is merely an acknowledgment of a pre-existing liability. T