( 1 ) PETITIONER has challenged order dated 8-9-2004 passed by the 1st Addition District Judge, Chhindwara in Civil original Suit No. 2-B/2002 by which the trial Court decided the admissibility of a document and held that it is a Bond within the meaning of S. 2 (5) of the Indian Stamp act, 1899 (hereinafter referred to as the 'act')and directed that on payment of appropriate stamp duty, document shall be admissible in evidence.

( 2 ) LEARNED counsel for petitioner has challenged the order on the following grounds :- (i) That, the said document is not a bond within the meaning of S. 2 (5) of the Act and in fact it is an acknowledgement of loan accompanied by a promise to pay. (ii) That, the document is not covered under the definition of S. 2 (5) of the Act. (iii) Reliance is placed to the judgments of Single Bench in Mannalal Nanhelal v. Sitambernath Ramhirdelal. 1961 MPLJ 169 and Nandram v. Vardichand, 1975 JLJ SN 7 and submitted that the order passed by the trial Court be set aside.

( 3 ) LEARNED counsel appearing for, respondents supported the order and it is submitted that the document in question is a Bond and it falls within the definition of under S. 2 (5) of the Act and the trial Court has rightly held it to be a Bond. He has placed reliance to a judgment of this Court in Radhe Shyam v. Kallu, 1980 JLJ Note 21 and submitted that this petition may be dismissed.

( 4 ) TO consider the rival contention of the parties, document in question may be seen which is on record as Annexure P/2. For ready reference, it is quoted as under :-"vernacular matter omited"

( 5 ) FROM the perusal of the document, it appears that on 20-11-1997, matter was settled between the parties that the defendant has to pay Rs, 2,00,000/- to the plaintiff Dr. Nahar and Rs. 2,00,000/- to hariprasad Sanghi, total Rs. 4,00,000/ -. Defendants Akhilesh Agrawal and Krishan gopal Sanghi promised to pay aforesaid amount and Krishan Gopal Sanghi agreed to pay half of the amount. Akhilesh Agrawal also agreed to pay half of the amount (near about Rs. 2,00,000/-) in 8 monthly instalments. It was further agreed that defendants shall deposit Rs. 25,000/- as an instalment between 1st and 5th of every month at the shop of Rajkumar Agrawal who would deposit the amount in Dr. Nahar's bank O. D. limit. Document is signed by Dr. Nahar, defendants Krishan Gopal Sanghi and Akhilesh Agrawal, and is attested by six witnesses. This document is in question in this petition.

( 6 ) FIRSTLY the definition of Bond in S. 2 (5)of the Act may be seen which reads as under :-2 (5) "bond"- "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 whereby a person obliges himself to deliver grain or other agricultural produce to another.

( 7 ) AFORESAID definition specifically shows that if following elements are present then the instrument is a Bond :- (1) There must be an undertaking to pay. (2) Sum should be ascertained in money. (3) The payment is to be made by one person to another person named in the instrument. (4) Document should be signed by promisee. (5) Document must be attested by a witness and it should not be payable to order or bearer. A Full Bench of this Court in Sant Singh v. Madandas Panika, 1976 JLJ 235 : (AIR 1976 MP 144) considering the distinction between promissory note and Bond held :"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 questi

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