Rule. Rule is made returnable forthwith and heard finally with the consent of Shri Vastani, learned counsel for the petitioners and Shri Mundra, learned counsel for the respondents.

2. The petitioners . plaintiffs have filed a suit for recovery of certain amount against the present respondents and in it they have produced a document titled agreement dated 7.9.2004 in support of their contention. The present respondents raised an objection and contended that it is a bond and, therefore, the document should be impounded. The contention of present petitioners in reply was that it is only an acknowledgment and the Court below has by impugned order dated 13.8.2008 held that the document was not an acknowledgment but a bond. It has, therefore, allowed the objection raised by the present respondents and directed the petitioners/ plaintiffs to pay requisite stamp duty.

3. Shri Vastani, learned counsel for the petitioners, by relying upon the definition of Bond in Section 2(c) of Bombay Stamp Act, 1958, (hereinafter referred to as the Act) contends that the document dated 7.9.2004 is not basically attested by the witness. He further states that the document itself shows that it is in respect of old or pre-existing liability. He, therefore, states that on both these counts, the document cannot be treated as a bond and ought to have been read as acknowledgment. He relies upon the judgment of this Court in the case of Patel Stone Trading Company vs. Ramsing, reported at AIR 1975 Bom. 79, particularly paragraph 4.

4. Shir Mundra, learned counsel for the respondents, relies upon the language of the document and explanation to Section 2(c) of the Act to urge that the Court below has rightly treated the document as a bond and not an acknowledgment. He also relies upon the above referred judgment and subsequent judgment in the case of Lexicon Finance vs. Park Securities, reported at 2004 (1) Mh. L.J. 934, in which said judgment has been followed. He contends that the document nowhere shows that earlier there was any promise to pay.

5. I have perused the document in dispute as also both the judgments on which respective learned counsel have placed reliance. The perusal of Patel Stone Trading Co. vs. Ramsing, (supra) particularly paragraph 2 shows that similar contention was raised before this Court by pointing out that the document there was merely an agreement providing for payment of preexisting debt and, therefore, it was not a bond. It was contended that the document accepted that the amount was payable. The consideration in paragraphs 4 and 5 is relevant and those paragraphs read as under :

4. 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.

5. In (AIR 1972 Madh Pra 54), the Madhya Pradesh High Court has drawan a distinction between an acknowledgment and a bond. After observing that the word .acknowledgment has not been defined in the Act, but it would be pertinent to refer to Article 1 of the Act, which gives its description and thereafter reading the proviso, it was observed by the Madhya Pradesh High Court :

Thus, on reading the aforesaid description in Article 1 with sub-section (5) of Section 2 of the Act, it would appear that where an acknowledgment contains a promise to pay, it is not to be