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1982 Supreme(J&K) 19
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
I.K. Kotwal, J.
Suraj Prakash Kapoor - Appellant
Versus
Om Prakash Kapoor - Respondent
Civil Suit No. 70/1980
Decided On : 08 April, 1982
Advocate For Appellant: J.P. Singh
Advocate For Respondent: V.K. Chopra
A document that satisfies the specific definition of a bond under Section 2(5)(b) of the Stamp Act, even if it has characteristics of a promissory note, is considered a bond and not a promissory note.
Headnote:
STAMP ACT - PROMISSORY NOTE - BOND - DISTINCTION - DOCUMENT HELD TO BE A BOND AND NOT A PROMISSORY NOTE - SUIT NOT MAINTAINABLE UNLESS NECESSARY DUTY PAID.
Fact of the Case:
The plaintiff filed a suit based on a document that was disputed to be either a promissory note or a bond. The defendant argued that the document was a bond and not a promissory note, and therefore not properly stamped and inadmissible in evidence.
Finding of the Court:
The court held that the document was a bond as defined by Section 2(5) of the Stamp Act and not a promissory note as defined by Section 2(22) of the Stamp Act. The court found that the document contained an undertaking to pay money to a person named in it, was not payable to order or bearer, and was attested by a witness, satisfying all the requirements of a bond under Section 2(5)(b).
Issues: Whether the suit was maintainable considering the document in question was not a promissory note but a bond which was not duly stamped.
Ratio Decidendi: The court applied the maxim "generalia specialibus non darogant" (general words do not derogate from special words) and held that the specific definition of a bond in Section 2(5)(b) of the Stamp Act takes precedence over the more general definition of a promissory note in Section 2(22). The court also held that Section 13 of the Negotiable Instruments Act, which deals with the negotiability of promissory notes, does not alter the basic definition of a promissory note given in Section 4 and cannot introduce the fiction of negotiability into a different Act, namely, the Stamp Act.
Final Decision: The court directed the plaintiff to pay the necessary stamp duty on the document, together with a penalty equal to ten times the duty payable, within two weeks to make it admissible in evidence.
1. Is the suit not maintainable because the document on which the suit is based is not a promissory note but a bond which too is not duly stamped? 0. P. D.
The document which is the subject matter of this issue reads as follows
"Rs. 40,000/- Dated ¦¦¦¦
On demand I promise to pay to Sh. Suraj Parkash Kapoor, son of Sh Jawalla Ditta kapoor, resident of Puranimandi Jammu the sum of 40,000 (Rupees forty thousand) for the value received today.
Sd/-
(Om Parkash)
Partner M/s J. D. Kapoor
& Sons, City Chowk. Jammu
Witness :
Sd/- (Harbans Lal Bargotra)
290 New Plots, Jammu.
3-1-78
(2) Whereas the plaintiff says that it is a promissory note the defendant says that it is a bond. In case the document is held to be a promissory note, then there is no dispute that it would be properly stamped and, therefore, admissible in evidence. Section 2 (22) of the Stamp Act which defines promissory note reads as under:
"(22) "Promissory note" means a promissory note as defined by the Negotiable Instruments Act; it also includes a note promising the payment of any sum of money out of any particular fund which may or may not be available, or upon any condition or contingency which may or may not be performed or happen."
(3) Promissory note has been defined by Section 4 of the Negotiable Instruments Act in these words:
"A" promissory note" is an 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."
(4) In order, therefore, that a document may fall within the aforesaid definition of a promissory note, it must possess the following characteristics :
(i) it must be an instrument in writing other than a bank-note or a currency-note;
(ii) it must contain an unconditional undertaking to pay a sum of money to another person, or to his order, or to the bearer of the instrument ;
(iii) the sum of money to be paid and the person to whom it is to be paid must be certain ; and
(iv) the undertaking to pay money must be signed by the maker of the instrument.
(5) The document in question does possess all the afore-said characteristics for it is a written instrument other than a bank-note or a currency-note; it contains an unconditional undertaking to pay a sum of money to another person, though not to his order or to the bearer of the document; the sum of money payable under it and the person to whom it is payable is certain; and the undertaking to pay the money has been signed by its maker. I find no force in Mr. Chopras contention that a document, even though it may possess all its characteristics, cannot still be held to be a promissory note, once it is shown to have been attested by a witness. Be that as it may, the question still remains whether the document in question is a promissory note or a bond as defined by Section 2 (5) of the Stamp Act, which reads as under :
"(5) "bond" includes :-
(a) any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be ;
(b) any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another ; and
(c) any instrument so attested, whereby a person obliges himself to deliver grain or other agricultural produce to another,"
Clauses (a) and (c) have no application to the document in question for it is neither an instrument creating a conditional obligation to pay money to attract the provisions of Clause (a), nor is it an instrument creating an obligation to deliver grain or other agricultural produce to attract the provisions of Cl. (c). The document does not satisfy the definition of a bond given in Cl. (b), as it satisfies all its requirements which are:
(i) that it must contain an undertaking to pay m
