The main legal point established in the judgment is that promissory notes, if not duly stamped, are inadmissible in evidence, and the defect of a promissory note not being duly stamped cannot be cured, leading to the conclusion that such a document cannot be received in evidence even on payment of deficit stamp duty and penalty.

1. Rule. Rule made returnable forthwith. By consent heard finally. This writ petition takes exception to the judgment and order dated 29th August, 2011 passed by the Maharashtra State Co-operative Appellate Court, Mumbai, Bench Aurangabad, in Appeal No. 26 of 2010.

2. It is the case of the petitioner that, the petitioner is a registered society and is established to lift water from river by way of lift irrigation. The respondent No.1 is the District Central Co-operative Bank and the respondent No. 2 is the branch of the said bank.

The petitioner society applied for loan of Rs.11,94,000/-to the respondent No.1 bank, through the respondent No.2. The respondent No. 1 sanctioned loan with thirteen yearly instalments with interest @ 13% p.a. for 12 years period for repayment, on condition of executing promissory notes, by the present petitioner.

The petitioner society then paid initial instalment and then amount towards the price of sugar cane was forwarded to the bank by the sugar factory, where the sugar cane was supplied. It is further case of the petitioner that, after some period, the respondent bank itself has gone to the stage of liquidation and some dispute arose about the repayment of loan.

The respondent Nos. 1 and 2 then filed Dispute NO. CC/156/2005 under Section 91 of the Maharashtra Co-operative Societies Act, 1960, for recovery of the loan amount. In the said Dispute, the bank has claimed that, the opponents have executed promissory notes to the extent of respondent to the bank or its nominee. These promissory notes were filed in the Co-operative Court at Nanded.

The opponents i.e. present petitioner and respondent Nos. 3 to 5 appeared and filed their written statement. The opponents have admitted the fact of obtaining loan, but disputed that, there was any default and also that, the amount is wrongly calculated in the Dispute. The parties went for the trial with these pleadings. The disputant led evidence and tried to rely upon the documents, promissory notes and bond papers. It is the case of the petitioner that, admittedly those documents are not at all stamped. The petitioner and other opponents raised objection for exhibiting the documents. The disputant, therefore, filed an application dated 2nd March, 2009, thereby seeking permission to affix stamp by impounding the documents. The opponents submitted their objection to the said application by objection dated 18th April, 2009, and prayed for rejection of the application of the disputant.

It was the contention of the opponents that, under Section 33 of the Bombay Stamp Act, 1958, there is no provision for impounding the promissory notes for payment of stamp duty. On the contrary, as per Indian Stamp Act, 1899, there is prohibition in respect of admissibility of bill of exchange or promissory notes, which are not duly stamped. It is the case of the petitioner that, in the present case, it is not even case of the deficit stamp of due stamp duty, but no stamp is affixed on any of the promissory notes and those documents are not at all admissible in evidence.

3. The trial Court heard both the sides and by order dated 13th July, 2009,rejected the application Exhibit-68 filed by the original disputant.

The disputant bank i.e. the respondent Nos. 1 and 2 herein, preferred appeal before the Maharashtra State Co-operative Appellate Court, Aurangabad on 5th October, 2009. The said appeal is registered and numbered as Appeal No. 26 of 2010. The Cooperative appellate Court heard the matter finally and by judgment and order dated 29th August, 2011, allowed the appeal and directed the trial Court to exhibit the document and set aside the order passed by the trial Court. Being aggrieved by the said judgment and order of the Co-operate Appellate Court, Aurangabad dated 29th August, 2011, this writ petition is filed by the petitioner.

4. The learned Counsel appearing for the petitioner submits that, the Co-operative appellate Court has completely lost sight of t