The interpretation of a document as a promissory note or a bond depends on whether it satisfies the mandatory requirements of a promissory note, regardless of attestation or default clauses. Additionally, caution should be exercised when relying on the judge's comparison of disputed writing.

The question arising in this appeal is whether Ext. Al document is a promissory note as contended by the plaintiff/ respondent herein or a bond as contended by the defendant/ appellant herein. The trial court found that Ext. Al satisfies all the requirements of a promissory note as defined in S.4 of the Negotiable Instruments Act and decreed the suit in favour of the plaintiff. The appellant contends that the trial court has wrongly interpreted Ext. Al as a promissory note. Since Ext. Al document was attested by two witnesses and it contained a default clause, that in case of default of the executant to pay the amount his assets will be liable for the amount due thereunder, the document could be only a bond and it could not have been admitted in evidence as a promissory note.

2. The relevant portion of Ext. Al document is as follows:

It was attested by two witnesses. The learned counsel appearing on behalf of the appellant relied on two decisions of the Bombay High Court in support of the contention of the appellant. In Jail Kumar Shivla! Shah and others v. Motilal Harahan Gandhi and another (AIR 1973 Bom. 27) the document which came up for in representation before the Court contained attestation and it was not made payable to order or bearer. Under these circumstances the Bombay High Court held that if a promissory note falling under S.4 of the Negotiable Instruments Act, 1881 and therefore under S.2(22) of the Indian Stamp Act, 1899 is attested and not made payable to order or bearer n would be a bond falling under S.2(5)(b) of the Indian Stamp Act and would therefore found to be a bond for the purpose of that Act. So also the document which was not found to be a promissory note in K. Mallayya Lachmayya Gap v. Prabhakarrao Marotrao Dhote (AIR 1976 Bom. 234) did not satisfy the necessary requirement of a promissory note as it was not made payable to order or bearer. Though the document was styled as a promissory note, the document contained acknowledgment of payment of certain amount and liability to pay the same within the time stipulated in the document. In case of default, it was provided that recovery be made as may be permissible by means of law. It was also attested by two witnesses. I am afraid these two decisions can be of no help to the appellant. Those decisions did not turn on attestation of the document by witnesses but on the lack of an undertaking to pay to order or bearer, which is the basic requirement to bring the document under the definition of a promissory note. In Kartey Singh v. Ifnkhar Ahmad (AIR 1981 All. 386) it was held that absence of the word "payable to order or bearer" in a document which contained attestation would indicate-that the parties intended to execute a bond rather than a promissory note.

3. The presence of a default clause by itself will not make a document not a promissory note, if it otherwise satisfied the mandatory requirement of a promise to pay to the order or bearer. The above view has been taken in Subramonia lyerKesava Iyer v. Muthupemmal Filial Maharaja Filial (AIR 1955 TRAV¬CO 141) and in Muthu.Thevar v. Singaram ((1966) 1 MLJ 406). I am in full agreement with the above view.

4. So also I find no merit in the contention that merely because the document is attested by witnesses it can no longer be a promissory note. According to me even though the promissory note is not liable to be attested the fact that it is attested by witnesses will not make it any the less a promisory note if the instrument is made payable to order or bearer. The High Court of Jammu & Kashmir has taken the same view in Sufaj Parkash Kapoor v. Om Prakash Kapoor (AIR 1983 NOC 88 (J. & K.). Therefore, I find no merit in the contention taken by the appellant that Ext. Al document should have been construed by the trial court as a bond and not as a promissory note.

5. Relying on the decision of the Supreme Court in State (delhi administration) v. Pali Ram (AIR 1979 SC 14) it was contended on behalf of