B. J. DIVAN, D. A. DESAI, S. N. PATEL, J.

( 1 ) THE main question with which we are concerned in the present reference to the Full Bench is whether the decision of a Division Bench of this Court in PRABHUDAS V. BHOGILAL (1967) 8 G. L. R. 649 is overruled by necessary implication by the decision of the Supreme Court in M. L. SETHI V. R. P. KAPUR A. I. R. 1972 S. C. 2379.

( 2 ) THIS Civil Revision first came up for final hearing before one of us on October 16 1973 and at that time in view of the decisions in Civil Revision Application No. 731 of 1967 decided on January 11 1967 and M. L. Sethi v. R. P. Kapur (supra) and the decision of the Division Bench of this Court in Prabhudas v. Bhogilal (supra) the matter was referred to a Division Bench. Thereafter the matter came up for hearing before the Division Bench consisting of M. U. Shah and B. K. Mehta JJ. and by their referring judgment dated December 19 1973 the Division Bench referred the case to a larger bench in view of the decision of the Supreme Court in M. L. Sethi v. R. P. Kapur (supra) and under these circumstances the matter has now come before this Full Bench.

( 3 ) IN order to appreciate the controversy involved in this case we will set out the facts giving rise to this litigation. The petitioner herein is the original defendant and the opponent is the original plaintiff. The plaintiff filed a suit against the defendant for a decree in the sum of Rs. 7 0 and interest and the suit was on the strength of a document which was marked 4/1. This document was executed by the defendant in favour of the plaintiff. According to the plaintiff this document was a promissory note payable on demand. The document was tendered in evidence when the plaintiff was being examined in chief. The defendant had raised an objection at the time of admission as to the admissibility of this document and his contention was that the document was a promissory note payable otherwise than on demand and therefore under Item 49 of Schedule I of the Indian Stamp Act 1899 it was required to be stamped as if it was a bill of exchange and the proper stamp duty payable thereon was the same as on a bill of exchange for the same amount payable otherwise than on demand. The document bore a stamp of 50 paise in the shape of five stamps of ten paise each. It is common ground that if the document were to be treated as a promissory note payable otherwise than on demand the stamp would be much more than 50 paise. It has been contended on behalf of the defendant before the learned 9th Joint Civil Judge (Junior Division) Baroda before whom the suit is pending that since this is a promissory note by virtue of sec. 35 Proviso (a) the document cannot be admitted in evidence at all since it was a promissory note and once it is found that the promissory note is insufficiently stamped it cannot be admitted in evidence at all. The learned 9th Joint Civil Judge (Junior Division) Baroda by his order dated August 3 1970 held that the document shold be exhibited as Exhibit 60 on the record of the case. The document was marked Exhibit 60 and he directed the document to be marked as a regular exhibit on the record of the case. At that stage the defendant came to this High Court by way of this Civil Revision Application. The matter came up for admission before our learned brother S. H. Sheth J. on September 2 1970 He admitted the matter and granted interim stay of further proceedings in the suit and since that date the further proceedings in the suit are stayed. 3 In order to appreciate the controversy involved in this case it is necessary to refer to some of the sections of the Indian Stamp Act 1899 Section 35 provides 35 No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence or shall be acted upon registered or authenticated by any such person or by any public officer unless such instrument is duly stamped: provided that (a)

Click Here to Read the rest of this document