The absence of the negotiability clause 'or to the order of' does not render a document any less a promissory note if it fulfills the terms of the definition.

1. The question arising in this miscellaneous appeal is whether or not the suit document is a promissory note. The trial court has held that it is a promissory note; but the learned judge has dismissed the suit since the document is not sufficiently stamped. Under S.35 of the Indian Stamp Act,

"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....".

In the proviso to the above section documents which can be admitted in evidence on payment of duty have been indicated But the promissory note under consideration does not come under that category. The present promissory note is for Rs. 4500/-. Under Art.49 of the Stamp Act the duty payable is the same as a bill of exchange and calculated on that basis the plaint promissory note is chargeable with stamp duty of Rs. 100/-. But the stamp affixed on the note is to the value of 40 No. only. So there is no doubt that the document, if treated as a promissory note is insufficiently stamped and the learned Subordinate Judge has rightly dismissed the suit. On appeal, however, the learned District Judge has taken the contrary view. According to him the plaint document is not a promissory note since it does not contain the negotiability clause "or to the order of".

2. Under the Indian Stamp Act S.2 sub-s. (22), "promissory note" means a promissory note as defined by the Negotiable Instruments Act, 1881;" And under S.4 of the Negotiable. Instruments Act, a "promissory note" is defined as,

"instrument in writing (not being a bank note or a currency-note) containing an unconditional undertaking signed by the maker, to pay a certain sum of money only to or to the order of a certain person, or to the bearer of the instrument."

It is true that in the plaint instrument the clause is absent; but all the other requirements which go to constitute a promissory note are present. From the definition of the promissory note quoted above it is obvious that the clause "or to the order of is not mandatory. Illustrations (a) and (b) to the section are in respect of promissory note; the plaint promissory note would come under illustration (b) which is as follows:

"(b) I acknowledge myself to be indebted to B in Rs. 1000, to be paid on demand, for value received."

The requirement "or to the order of is absent in the above illustration. The illustration contains only an acknowledgment of the debt and undertaking to pay on demand and that is sufficient to make a promissory note. The trend of decisions as far as I am able to see is in favour of the view that the absence of the expression "or to the order of "will not make the document any the less a promissory note. A Full bench of the Madras High Court has held so In the matter of validation of a document dated 14-6-47 executed by Kuppusami Chetty in favour of Arunachala Chettiar (AIR. 1955 Mad. 652). Rajamannar, C. J., speaking for the Bench would observe:

"The mere omission of the expression "to the order of" would not render a document any the less a promissory note, if otherwise it fulfilled the terms of the definition of promissory note. Actually a promissory note need not contain this expression. It is sufficient if there is an unconditional undertaking to pay a certain sum of money to a certain person."

To the same effect is the recent decisions in Mangaldas v. Luhar Kohan Arja (AIR. 1967 Gujarat 7) and Bahadurrinisa Begum v. Vasudev Naick (AIR. 1967 A. P. 123). In the former case (AIR. 1967 Guj. 7) it was held:

"Where it is not disputed that the document which is in writing is neither a bank note nor a currency note, and it contains an unconditional promise to pay a specific sum to a certain person on demand, the document is a promissory note as defined in S.4 of the Negotiable Instruments Act. A promissory note however is not necessarily a negotiable instrument. Fir the purpose of deciding as to whether a document is or i