In sufficiently stamped promissory note cannot be admissible in evidence.

R. BANUMATHI, J.

This Appeal is preferred at the instance of unsuccessful Plaintiff in O.S.No.418 of 1986 on the file of Principal Subordinate Judge, Pondicherry. The learned trial Judge has dismissed the Plaintiff's suit on the Preliminary Issue that the suit is not sufficiently stamped and that the suit claim is unsustainable on the foot of the suit instrument.

2.Case of Appellant / Plaintiff is that the Respondent /Defendant borrowed Rs.50, 000/- on 01.12.1985 from the Plaintiff for purchase of exhibition rights of the Film "Rajarishee" and the Defendant has agreed to repay the said amount with interest at the rate of 12% per annum by 01.06.1986 and executed the suit Promissory Note and thereafter Defendant failed to repay the same and hence the suit.

3.Denying the claim of the Plaintiff, Defendant has filed Written Statement interalia contending that he was doing Toddy and Arrack business. In that connection, the Plaintiff used to purchase empty bottles from the Defendant as well as from others recommended by the Defendant. Further case of Defendant is that in November 1985, Defendant had asked the Plaintiff to lend money for starting Film Distribution Trade and without parting with the money, Defendant's signature was taken in the paper.

The Defendant has mainly contended that the suit document is not a Promissory Note as described under S.4 of Negotiable Instruments Act and that the suit cannot be filed on the said document. No consideration was passed to Defendant on 01.12.1985 and there is no cause of action for the suit. Due to misunderstanding in the Trade of Empty Bottles, the Plaintiff has filed the vexatious suit and the suit is not maintainable.

4.On the basis of the above pleadings, five Issues were framed in the trial Court. The first Issue "Whether the suit document is not valid and enforceable in law ? " * was taken up as the Preliminary Issue. On that Issue, the learned Principal Subordinate Judge has dismissed the suit finding that the impugned document is a Promissory Note within the meaning of S.4 of N.I. Act. Pointing out the recitals in the Impugned Document that the Amount is payable by 01.06.1986, the trial Court found that for the purpose of Stamp Duty, the Impugned Document is covered under Cla.(b)(ii) of Art.13 of the Stamp Act. Since the amount is payable on demand which falls under Cla.(b) of Art.49 of the Stamp Act, the learned trial Judge has dismissed the suit as unsustainable.

5.Aggrieved over the dismissal of the suit on the Preliminary Issue of maintainability of the suit, Plaintiff has filed this appeal. Learned counsel for the Appellant / Plaintiff has contended that the Court below erred in dismissing the suit on the Preliminary Issue itself without taking the fair trial. Submitting that the Impugned Document dated 01.12.1985 is a Promissory Note which would attract Art.49(a)(ii) of the Stamp Act and not Art.49(b) of the Stamp Act, it is further contended that the trial Court has not properly appreciated the decision reported in 1971 (1) MLJ 214. It is further submitted that in any event, the trial Court ought to have decreed the suit by treating the said document as a " Receipt " based on the original cause of action.

6.Per contra learned counsel for the Respondent / Defendant has submitted that in view of the recital in the Impugned Document to the effect that the amount is payable by 01.06.1986, only Cla.(b) of Art.4 9 of the Stamp Act is applicable and that the findings of the trial Court are well balanced and that there is no reason warranting interference.

7.We have carefully considered the submissions of both sides, Judgment of the trial Court and the materials on record. In such consideration, the point following points arise for our consideration:-

1.Whether the trial Court was justified in taking the view that the suit document is a Promissory Note; but inadmissible in evidence on the ground that the said document was not duly stamped as required by law ?

2.Without setting fo