( 1 ) THE two questions raised for our determination are :-

(1) What is the distinction between a 'bond' and a 'promissory note'; and (2) Whether for tihe purposes of the Stamp Act, in the definition of promissory note, the explanation to Section 13 of the Negotiable instruments Act can be engrafted in Section 4 of that Act ?

( 2 ) AS regards the second question, certain observations were made by a division Bench of this Court in Kodorilal v. Sukhlal, AIR 1968 Madh Pra 4 although Shri Pandey contended that those observations are obiter, the question being of frequent occurrence, it has been referred to this Bench.

( 3 ) SECTION 2 (5) of the Stamp Act defines a bond thus :-

' 'bond' includes- (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, where-by a person obliges himself to deliver grain or other agricultural produce to another. " and Section 2 (22) of the Stamp Act defines a promissory note by reference to the Negotiable Instruments Act thus :-"'promissory note' means 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. " in Section 4 of the Negotiable Instruments Act, 'promissory note' is denned in these words :--"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. "

( 4 ) THE essentials of a promissory note are :-

(1) An unconditional undertaking to pay; (2) The sum should be a sum of money and should be certain; (3) The payment should be to the order of a person who is certain, or to the bearer of the instrument; and (4) The maker should sign it. If these four conditions exist, the instrument is a promissory note.

( 5 ) THE question of distinguishing a promissory note from a bond arises by reference to Clause (b) of the above definition of bond. The essentials of a bond are :--

(1) There must be an undertaking to pay; (2) The sum should be a sum of money but not necessarily certain; (3) The payment will be to another person named in the instrument; (4) The maker should sisn it; (5) The instrument must be attested by a witness; and (6) It must not be payable to order or bearer. On a comparison between the essentials of a promissory note and those of a bond, three distinguishing features emerge :-- (i) If money payable under the instrument is not certain, it cannot be a promissory note, although it can be a bond. (ii) If the instrument is not attested by a witness, it cannot be a bond, although it may be a promissory note. (iii) If the instrument is payable to order or bearer, it cannot be a bond, but it can be a promissory note.

( 6 ) TO put it differently, there are two peculiar features of a bond :-

(1) Positive -- it must be attested by a witness. (2) Negative -- it must not be payable to order or bearer.

( 7 ) IT is also clear that if in an instrument the above two distinguishing features (positive and negative) are present, then, even if the four essentials of a promissory note are also present, the instrument will still be a bond, because all the ingredients of a promissory note are also present in a bond with the exception that whereas a promissory note can be payable, apart from the person named in it, to the order of that person or to the bearer of the instrument, a bond cannot be payable to order or bearer.

( 8 ) THEREFORE, an instrument, which is not paya