RAINA, J.:- This reference arises out of a revision petition filed by the plaintiff. Choudhary Gulabchand Jain. He filed a suit against the defendant Bhama for the recovery of a sum of Rs.8,187/-on the basis of an entry signed by the defendant in the account books of the plaintiff. The entry reads as follows:

The trial Court held that it was a bond within the meaning of the Stamp Act and directed the plaintiff to Day the duty and penalty which is to be charged for the bond. Aggrieved by this order the plaintiff filed the revision petition. Shivdayal. J., before whom the revision came up for hearing, referred the question whether the entry in the account books was a bond within the meaning of Section 2(5) of the Stamp Act (hereinafter referred to as the Act) in the following terms:-

"Although it can be said with regard to the expression "Baqi Dena" that it amounts to a bond on the authority of Bhansarlal v. Naval Kishore, (AIR 1958 Madh Pra 21) and also Hiralal v. Badkulal. AIR 1953 SC 225, in my opinion, the question whether the words 'Baqi Lena' also mean an obligation to pay the money within the meaning of Section 2(5) of the Stamp Act must be decided by a Division Bench."

2-3. The main contention of the learned counsel for the plaintiff is that the entry amounts to an acknowledgment and not a band within the meaning of Section 2 (51 of the Act. In order to appreciate this contention it is necessary to refer to the definition of 'Bond' as given in Section 2(5) of the Act, which reads as follows :-

"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 nay money to another; and.

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

The relevant clause of the aforesaid provision is clause (b) and as the other conditions laid down therein are fulfilled in this case, the main question is whether by this instrument the defendant obliged himself to pay money to the plaintiff, or merely acknowledged an existing liability.

4. It may be here mentioned that the word "acknowledgment" has not been defined in the Act, but it would be pertinent to refer to Article I of the Act which gives its description as under:-

"Acknowledgment of a debt exceeding twenty rupees in amount or value written or signed by, or on behalf of, a debtor in order to supply evidence of such debt in any book (other than a banker's pass-book) or on a separate piece of paper when such book or paper is left in the creditor's possession; provided that such an acknowledgment does not contain any promise to pay the debt or any stipulation to pay interest or to deliver any goods or other property."

From the proviso in the aforesaid description it is clear that where an acknowledgment contains a promise to pay the debt it is not to be stamped as an acknowledgment under the Act Thus, on reading the aforesaid description in Article I with sub-section (5) of Section 2 of the Act it would appear that where an acknowledgment contains a promise to pay it is not to be stamped as an acknowledgment, but will have to be stamped as a bond, where it is attested by a witness and is not payable to order or bearer.

5. There can be no difficulty in considering whether a particular instrument is a bond or a bare acknowledgment for the purposes of the Stamp Act, where such instrument contains an express promise to pay. The difficulty can arise only where the promise to pay is implied. It has been held in a number of cases that the definition of 'Bond' as given in sab-section (5) of Section 2 of the Act covers only such instruments whereby a person expressly obliges himself to pay money and not one from which the law merely implies such an obligation. In C