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MADHYA PRADESH HIGH CURT
Arun Mishra and S. Shrivastava, JJ.
Ram Kishan Dwivedi —Petitioner
versus
Rohni Prasad Tiwari
and Ors. —Respondents
Writ Petition No. 1167 of 2007
Decided on 27.8.2009
For the Petitioner:Mr. Ashish Shroti, Advocate.
For the Respondents:Mr. Mohd. Ali with Mr. Vijay Shukla, Advocates.
IMPORTANT POINT
Authentication by a Notary is not mere attestation, but something more.
Headnote:(i) Stamp Act, 1899—Section 2(22)—Negotiable Instruments Act, 1881—Section 4—Bond and Promissory Note—Levy of stamp duty—Trial Court held the document to be a bond not a promissory note and ordered for stamp duty as prescribed under Schedule 1, Article 15 of Stamp Act together with penalty—If money payable under the instrument is not certain, it cannot be a promissory note, although can be a bond, if instrument is not attested by a witness, it cannot be a bond although it may be a promissory note and if instrument is payable to order bearer, it cannot be a bond, but it can be a promissory note—Amount of Rs.1,00,000 has been obtained by petitioner and was payable on demand—There is unconditional undertaking to pay the amount which is certain, payment, is to order of a person and they have signed it and it has not been attested by any witness—Nature of document indicates it to be a promissory not it could not be said to be a bond—Impugned order set aside. (Paras 9 , 10 , 15 and 16)
(ii) Transfer of Property Act, 1882 , 1882—Section 3—Succession Act, 1925—Section 63(c)—Attestation—Authentication by a Notary is not mere attestation, by something more—It means that person authenticating has assurance himself of identity of the person who has signed the instrument as well as its to fact of execution—Authentication of notary is to be treated as equivalent to affidavit if identity of executant and no affidavit of identity of executant is necessary. (Paras 11 and 13)
Result: Writ Petition allowed.
Arun Mishra, J.— Writ petition has been filed as against the interlocutory order dated 20.3.2006 passed by 1st Additional District Judge, Shahdol in Civil Suit No. 9/B/2004 holding the document to be bond and recovery of payment of deficit stamp duty from respondent.
2. Petitioner has been asked to make the payment of stamp duty and penalty treating the document as bond, hence the instant writ petition has been filed by the plaintiff/petitioner.
3. The plaintiff has filed the suit for recovery in the sum of Rs.1,65,000 on the ground that defendant-respondent has obtained sum of Rs.1,00,000 from the petition on 23.4.2002. He executed a promissory note to repay the same amount on demand. When the document was tendered in the evidence, application was filed by defendant under Section 151 of Civil Procedure Code as to admissibility of the document in evidence on the ground that it does not bear stamp duty and penalty.
4. The Trial Court has held the document to be a bond not a promissory note and has ordered for stamp duty as prescribed under Schedule 1, Article 15 of the Stamp Act together with penalty. It has been held by the Trial Court that document could be admitted in evidence. The Trial Court has rejected the application under Section 151 Civil Procedure Code as order dated 13.10.2006.
5. Shri Ashish Shroti, learned counsel for the petitioner, has submitted that document is promissory note, it could not be said to be a bond. He has submitted that document has not been attested by any witness, the Trial Court ought to have seen that ‘promissory note’ is not necessarily a ‘bond’. In absence of attestation by the witness the document could not have been held to be bond. The Notary could not be said to be a witness. Petitioner’s counsel has relied upon a decision of the Apex Court in M.L.Abdul Jabar Sahib v. H. Venkata Sastri & Sons & Ors. etc. AIR 1969 SC 1147
6. Shri Mohd. Ali, learned counsel with Shri Vijay Shukla appearing on behalf of respondent/defendant, has submitted that document is a bond. Notary has signed the document as a witness, consequently the document could not be said to be promissory note. The order passed by the Trial Court is proper.
7. The main question for consideration is about the nature of document whether is a bond or promissory note. Section 2(22) of the Stamp Act defines a promissory note reference to the Negotiable Instruments Act thus:
“A promissory note” mean 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 of happen.”
In Section 4 of the Negotiable Instruments Act, ‘promissory note’ is defined in these words:
“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 certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument.”
Bond has been defined under Section 2(5) of the Indian Stamp Act, 1899, thus:
“2(5) “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;
8. The question whether the document is a promissory note or a bond and the essentials of a promissory note and the distinction has been considered by the Full Bench of this Court in Santi Singh Ladharam v. Madandas Gyandas Panika & Anr. 1976 MPLJ 238 in paragraphs 4, 5 and 6 thus:
“4. The essentials of a promissory note are:
(1) An uncon
