Insufficiently not curable by subsequent payment of duty and penalty.

The plaintiff in O.S. No. 6958 of 1973 on the file of the Court of the XI Asst. Judge, City Civil Court, Madras is the revision petitioner. The respondent-defendant is said to have borrowed from the plaintiff a sum of Rs. 2,000 on 5th June, 1970, and later on the same day he is said to have executed a promissory note in favour of the plaintiff in respect of the amount borrowed earlier. The defendant is said to have borrowed a further sum of Rs. 1,000 as a hand-loan on 10th September, 1970. The suit has been filed on the debt for the recovery of the amount.

2. In the plaint itself it is stated that the promissory note executed by the defendant in favour of the plaintiff is insufficiently stamped.

3. The defendant inter alia denied the borrowing and also contended that the suit was not maintainable as the promissory note was insufficiently stamped.

4. The trial Court raised as many as four issues, the main issue being issue No. 1, which relates to the question whether the defendant borrowed the money from the plaintiff. During the trial the plaintiff was examined as P.W. 1. He stated that the defendant had passed a receipt for receiving the sum of Rs. 2,000 on 5th June, 1970 and sought to mark the document in evidence. An objection was taken on behalf of the defendant that the document sought to be marked was a promissory note which was insufficiently stamped and consequently it should not be admitted in evidence. The learned Assistant Judge, City Civil Court, Madras upheld the objection advanced on behalf of the defendant by his order, dated 10th November, 1978.

5. The aggrieved plaintiff has consequently filed this revision petition against the order, dated 10th November, 1978.

6. It is not disputed before me that the document that was sought to be admitted in evidence is a promissory note. According to Mr. Ramabhadran, learned counsel for the plaintiff the suit itself is based on the debt and not on the promissory note and that the promissory note is sought to be marked in evidence only for the purpose of proving the actum of the loan of Rs. 2,000 advanced on 5th June, 1970 which according to the learned counsel is a collateral purpose. Mr. Ramabhadran, contended that what is prohibited under section 35 of the Stamp Act is that the insufficiently stamped promissory note cannot be admitted in evidence so as to form the very foundation of the suit, but there is no prohibition for any insufficiently stamped promissory note being received in evidence for a collateral purpose. The purpose for which the insufficiently stamped promissory note is sought to be put in the present case is only to prove the collateral purpose of she wing that Rs. 2,000 was lent by the plaintiff on 5th Tune, 1970 and there could be no objection to the reception of the insufficiently stamped promissory note in evidence.

7. I am unable to accept the contention of the learned counsel. section 35 of the Stamp Act leads as follows-

“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, registered or authenticcated by any such person or by any public officer, unless such instrument is duly stamped:

Provided that -

(a) any such instrument not being an instrument chargeable with a duty of one anna (or half an anna only), or a bill of exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion.

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The above section prohibits a Court from admitting in evidence any document which is insufficiently stamped. Even if no objection is raised by one or the other partie