SATISH CHANDRA, J. :- This seven Judge Full Bench has been constituted to consider the five Judge Full Bench decision of this Court in (1878-80) ILR 2 All 654 (FB) (Reference by the Board of Revenue, N.W.P.)

2. Mahabir Prasad, the applicant, made an application under Section 9, Provincial Insolvency Act, for declaration of Peer Bux, opposite party No.1, as an insolvant. It was alleged that Peer Bux had borrowed a sum of Rs.4,000 from the applicant on 17-1-1967. He had agreed to supply 50 quintals of Rab at Rs.80 per quintal in lieu of the borrowed sum. It was also agreed that in case of default Peer Bux would pay to the applicant the amount of profits at 50 per cent by way of damages. The transaction was evidenced by a deed of agreement and a receipt both dated 17-1-1967. Peer Bux did not supply the Rab as agreed and a sum of Rs.4,000 was due from him. He had committed an act of insolvency by transferring his property.

3. On the deed of agreement dated 17th January, 1967, being produced in Court, Peer Bux filed an objection stating that the document was a bond and was inadmissible in evidence for lack of sufficient stamp duty. The learned Insolvency Judge upheld the objection. According to him the document was a bond. The applicant was directed to make good the deficiency in stamp duty and to pay the prescribed penalty. Aggrieved, the applicant came to this Court in revision.

4. At the hearing of the revision reliance was placed upon a 5 Judge Full Bench of this Court in (1878-80) ILR 2 All 654 (FB) in support of the view taken by the learned Insolvency Judge. On behalf of the applicant it was urged that this Full Bench decision has been doubted in a number of subsequent decisions of this as well as other High Courts. The learned single Judge hearing the revision felt that it was desirable that the question be considered by a larger Bench. His opinion was endorsed by a Division Bench.

5. The document in question states that Peer Bux promises to sell 50 quintals of Rab at the rate of Rs.80 per quintal to L. Mahabir Prasad. He has received Rs.4,000 as an advance towards the price. He agrees that he will supply the Rab by March, 1967. In case of defaults in making the supply, he will pay 50 per cent of the profits by way of damages. The document was unattested.

6. Read as a whole the document represents a transaction of an agreement to sell Rab and an advance payment of its price. One of the terms or the transaction was that in default of supplying the agreed quantity of Rab the executant will pay damages at the rate of 50 per cent of the profits. In the document there is no express promise to pay back the sum of Rs.4,000 which he had received as the advance price, in case the Rab was not supplied.

7. The question is whether this document is a bond or merely an agreement, within meaning of the Stamp Act.

8. Section 2(5) of the Stamp Act defines a 'bond' to include-

"(a) any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be;

(b) any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another; and

(c) any instrument so attested, whereby a person obliges himself to deliver grain or other agricultural produce to another."

9. The document before us is unattested. So it is outside the purview of clauses (b) and (c). Clause (a) requires an obligation to pay money subject to the condition that the obligation shall be void if a specified act is performed or is not performed. The transaction ought to relate to so conditioned an obligation. The primary or the principal covenant ought to be to create an obligation to pay money defeasible on the happening of the specified event. Clause (a) will not be applicable to a transaction where the obligation to pay money arises as a consequence of the commission of a breach of some other obligation. Th