A document that contains an unconditional undertaking to pay a certain sum of money to a certain payee and is payable at a fixed time is a promissory note, even if it is not expressly stated to be negotiable.

R. N. MISRA, J.

( 1 ) THIS is an application of the defendant under Section 155. Civil P. C. When it came up for hearing before his Lordship the Chief Justice, he directed that this revision application be heard by a Division Bench. That is how the matter is before us.

( 2 ) THE plaintiff-opposite party filed Money Suit No. 8/31 of 1968 in the court of the learned Subordinate Judge. Bargarh, asking for recovery of a sum of Rs. 1000/ -. In paragraph 1 of the plaint the plaintiff stated that on 5-2-1965 the defendant incurred a loan of Rs. 1000/-undertaking to pay by the following Chaitra Purnima the principal along with Interest and in evidence of the transaction had executed a receipt In spite of repeated demands the defendant failed to pay. Therefore, the suit was instituted. The suit was transferred to the Munsif for trial.

( 3 ) DURING trial dispute was raised by the defendant when the plaintiff wanted the document dated 8-2-1965 to be received in evidence. The defendant took the stand that the document was a promissory note and as it had not been properly stamped it could not be received in evidence in view of the provisions of Section 35 of the Stamp Act. The learned Munsif examined the matter and held that the document was a bond within the meaning of Section 2 (5) (a) of the Stamp Act. and repelled the contention of the defendant that it was a promissory note. This revision is directed against that decision of the learned Munsif dated 27-8-1970.

( 4 ) AS we have already indicated the plaintiff's stand in the plaint was that the document was a receipt. The learned Munsif has held it to be a bond and the defendant wants us to hold that it is a promissory note. If the document turns out to be a receipt it has been duly stamped. If the conclusion of the trial court is upheld, as a bond it has to be impounded and can be received in evidence. If it ultimately turns out to be a promissory note and we hold with the defendant the document shall not be admissible in evidence because the proper stamp payable on the promissory note would be 15 paise and it admittedly bears a stamp of 10 paise only. The first proviso of Section 35 of the Stamp Act would stand in the way of the document being admitted into evidence.

( 5 ) MR. Mohapatra for the petitioner and Mr. Rao who appears for the defendant amicus curiae do not want us to hold the document to be a bond. The dispute is between two rival contentions -- Mr. Rao for the plaintiff contending that it is a receipt and Mr, Mohapatra for the defendant contending that it is a promissory note. We shall therefore, not examine whether the document is a bond though the learned Munsif had taken that view. A promissory note has been defined in Section 2 (22) of the Stamp Act to mean "a promissory note as defined by the Negotiable instruments Act, 1881; 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. " As the definition in this Act adopts the definition in the Negotiable Instruments Act we will have to look into Section 4 of the Statute. Under Section 4 a promissory note is said to be

"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"

Mr. Mohapatra contends that he does not want the wider definition under Section 2 (22) of the Stamp Act and claims that by reference to Section 4 of the negotiable Instruments Act the document under consideration becomes a promissory note. On analysis the requisites indicated in Section 4 of the negotiable Instruments Act in order to make a document a promissory note are these:--

(1) It must be in writing and signed by the maker; (2) It must contain an unconditional undertaking to pay a ce