Defective documents cannot be validated by payment of penalty and they are inadmissible in evidence.

(Civil Revision Petition is filed under Article 227 of the Constitution of India against the order and decretal order of the learned Subordinate Judge, Tiruvarur, dated 29.12.2003 made in O.S.No.47/2002 now pending as O.S.No.34/2004 on the file of the District cum Sessions Court, Nagapattinam.)

The petitioner has sought for setting aside the order dated 29.12.2003 made in O.S.No.47 of 2002 on the file of Sub-Court, Tiruvarur. The revision petitioner is the plaintiff in the suit.

2. The suit is filed for recovery of a sum of Rs.5,38,000/- with subsequent interest and costs from the respondent herein/defendant. The case of the plaintiff is that the defendant borrowed two loan amounts of Rs.2,00,000/- each from the plaintiff and failed to repay the same and the suit claim is the balance outstanding in the transaction.

3. During the trial of the case, the plaintiff sought for marking Plaint document Nos.1 and 2 as exhibits on his side and that was objected to by the defendant on the ground that the documents are inadmissible in evidence. The Trial Court in the impugned order held that both the documents are promissory notes payable otherwise than on demand and as the documents were insufficiently stamped, they are inadmissible as per Section 35 of the Stamp Act and cannot be marked as exhibits. Challenging that order, the present revision is preferred.

4. The learned counsel for the petitioner contends that Plaint document Nos.1 and 2 stipulate six months time for payment of monies under the documents and they ceased to be promissory notes since there is no unconditional undertaking to pay on demand and hence the impugned order is liable to be set aside.

5. Per contra, the learned Senior counsel appearing for the respondent contends that though Plaint document Nos.1 and 2 specified a period of six months for repayment, it cannot be said that the payment is conditional and the documents contain an unconditional undertaking to pay and therefore they are promissory notes payable otherwise than on demand and since they are insufficiently stamped, they are inadmissible in evidence as stipulated under Section 35 of the Stamp Act and the Trial Court has rightly refused to mark them as Exhibits in the case. In support of his contention, the learned Senior Counsel relies on the decision of the Division Bench of this Court in Thenappa Chettiar V. Andiyappa Chettiar (1971 (I) MLJ 214).

6.The Plaint document Nos.1 and 2 contain the very same recitals and for the purpose of appreciation, Plaint document No.1 is reproduced below:

It is engrossed on a Ten Rupees non-judicial stamp paper.

7. The question to be considered is whether the instruments are promissory notes for the purpose of the Stamp Act. "Promissory note" is defined under Section 2(22) of the Stamp Act as one defined by the Negotiable Instruments Act, 1881. Section 4 of the Negotiable Instruments Act defines "Promissory note" thus:

"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."

Paragraph 2 of Section 5 of the Negotiable Instruments Act is relevant and reads thus:

"A promise or order to pay is not "conditional" within the meaning of this section and section 4, by reason of the time for payment of the amount or any instalment thereof being expressed to be on the lapse of a certain period after the occurrence of a specified event which, according to the ordinary expectation of mankind, is certain to happen, although the time of its happening may be uncertain."

8. A combined reading of the above provisions makes it clear that though the amount in instrument is payable within a period of six months, it cannot be said that the payment is conditional within the meaning of Section 4 of the Negotiable Instruments Act. The Plaint documents 1 and 2 contain an unconditional und