Promissory note if only stamped and admissible in evidence.

Ratnam, J.

1. The defendants in O.S. No.66 of 1987, Additional District Munsif's Court, Tirunelveli, are the petitioners in this Civil Revision Petition, which is directed against the order passed by the Court below allowing I.A. No. 1835 of 1989 filed by the respondent herein praying that the respondent, who had been earlier examined, should be recalled and further examined and to mark in evidence the instrument on the basis of which the suit had been instituted.

2. In O.S. No.66 of 1987, the respondent had prayed for the relief of recovery of a sum of Rs.5,420/- from the petitioners on a promissory note. That promissory note had been executed on a stamp paper of the value of Rs.2.50. The petitioners raised an objection that the document on the basis of which the suit had been instituted by the respondent was not a promissory note, but that objection was over-ruled. However, the instrument as such had been omitted to be marked in evidence when the respondent was examined as P.W. 1 and in I.A. No. 1935 of 1989, the respondent prayed that he should be recalled and the document on 'the basis of which the suit had been laid, should be marked in evidence. In opposition to this, the petitioners raised the plea that the promissory note sued upon was not duly stamped in accordance with the provisions of the Indian Stamp Act (hereinafter referred to as 'the Act') and the Rules framed thereunder and, therefore, under Section 35 of the Act, the document could be received in evidence. The Court below held, relying upon P. Moorthy v. A.R. Kothandaraman (1978) 2 M.L J. 294, that the instrument in question had been properly stamped under the provisions of the Act and the Rules and that Section 35 of the Act was not a bar to the document being received in evidence. In that view, the Court below allowed the application filed by the respondent and directed that the respondent should be recalled for further examination for marking the document in evidence. It is the correctness of this order that is challenged in this Civil Revision Petition.

3. Referring to Sections 2(11), 10,11 and 35 of the Act and Article 49(a)(iii) of Schedule I to the Act and Rules 3(2), 5, 13 and 16 of the Rules, learned Counsel for the petitioners contended that promissory notes of the kind sued upon should be stamped only with adhesive stamps of proper denomination and that too with stamps of the description as prescribed in Rule 16 of the Rules and the instrument in question not having been so stamped, was inadmissible in evidence under Section 35 of the Act. Referring to the decision in P. Moorthy v. A.R. Kothandaraman (1978) II MLJ 294 relied on by the Court below, learned Counsel pointed out that decision required reconsideration in as much as the effect of Rule 16 of the Rules framed under the Act had not been considered therein.

4. In order to appreciate the contention so raised, it would be necessary to make a reference to come of the provisions of the Act and the Rules framed thereunder. Section 2(11) of the Act defining "Duly stamped" states that as applied to an instrument, it means that the instrument bears an adhesive or impressed stamp of not less than the proper amount and that such stamp has been affixed or used in accordance with the law for the time being in force in India. Thus, in order to be instrument duly stamped for purpose of the Act the instrument should bear an adhesive or impressed stamp. Adhesive or impressed stamp has been defined under Section 2(13) of the Act as including labels affixed or impressed by the proper office and stamps embossed or engraved on stamped paper. Under Section 10(1) of the Act, the mode of payment of stamp duty has been indicated. That provision enacts that all duties with which instruments are chargeable shall be paid, and such payment shall be indicated on such instruments by means of stamps according to the provisions herein contained; or when no such provision is applicable thereto, as the State Government may