Shrivastava, J. -- 1. This writ petition has been filed by the petitioner challenging the order dated 3.12.2008, passed by the Court of I Additional District Judge, Ratlam in Case No. 8-B/08 holding the document dated 16.10.2002 to be bond and directing the plaintiff to pay appropriate stamp duty as per the provision of Indian Stamp Act before admitting the document in evidence.

2. The petitioner-plaintiff has filed the suit for recovery against the respondent-defendant on the basis of the document in question dated 16.10.2002. The trial Court by the order dated 3.12.2008 examined the nature of the document and held it to be bond and further held that as per Article 12 of Schedule I-A of the Indian Stamp Act duty was payable at the rate of 4% whereas the document was executed only on the Stamp of Rs.100/- which was not on adequate stamp, therefore, not admissible in evidence. The trial Court directed the petitioner to pay proper stamp duty and penalty as per the provisions of Stamp Act before admitting the document in evidence. Aggrieved with this order petitioner has filed the present writ petition under Article 227 of the Constitution of India.

3. Learned counsel appearing for the petitioner submitted that the trial Court has committed an error. in treating the document in question to be a bond whereas the document is only an agreement which has been executed on proper stamp paper.

4. Learned counsel appearing for the respondent submitted that no error has been committed by the trial Court in treating the document as bond since it satisfies the requirement of bond.

5. We have heard the learned counsel for the parties and perused the record.

6. The definition of bond given in section 2(5) (b) of the Indian Stamp Act, 1899 reads as under:"

"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. The definition of bond is inclusive definition and the bond as defined in section 2(5) (b) is to be given the widest meaning. An instrument which satisfies the conditions mentioned in the above section is included within definition of bond. The necessary requisites of bond are that the instrument should be signed, attested by witness, not payable to order or bearer and by the instrument a person should oblige himself to pay money to another or to deliver grain or other agricultural produce to another.

8. The Full Bench of this Court in the matter of Santsingh v. Madam/as Gyandas Panika and another, reported in 1976 JLJ 235=1976 MPLJ (FB) 238, has noted the essentials of the bond as under:

The essential of 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 marker should sign it;

(5) The instrument must be attested by a witness; and

(6) It must not be payable to order or bearer.

9. In the present matter, the order of the trial Court has been challenged on the ground that the document in question is not a bond, but it is an agreement. For determining the true character of an instrument, the instrument is required to be read as a whole and its dominant purpose is to be ascertained. The basic difference between the bond and the agreement is that in the case of bond, in the event of breach, the party to the instrument, who is obliged to pay, is liable to pay the sum stipulated in the instrument whereas in the case of agreement the quantum of damages is to be fixed by the Court.

10. The Calcutta High Court in the matter of Gisborne and Co. v.Subal Bowri,