C.R.P.No.3344 of 2018

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 06.01.2023

CORAM

THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH

C.R.P.No.3344 of 2018

and C.M.P.No.18962 of 2018

Basheer Ahamed

... Petitioner

Vs.

Rajaveni

... Respondents

Prayer : Civil Revision Petition is filed under Article 227 of the Constitution of

India, against the fair and decretal order in I.A.No.42 of 2018 in O.S.No.90 of

2015 dated 04.08.2018 on the file of Additional District Judge (Fast Track Court),

Villupuram.

For Petitioner

: Mr.N.Suresh

For Respondent

: Mr.T.S.Baskaran

O R D E R

This Civil Revision Petition has been filed by the 1st defendant questioning

the dismissal of the application filed under Section 35 of the Indian Stamp Act in

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I.A.No.42 of 2018 in O.S.No.90 of 2015 by the Additional District Judge (FTC),

Villupuram, dated 04.02.2018.

2.The respondent/plaintiff filed the suit for recovery of money against the

petitioner and another, based on a promissory note dated 23.05.2012. The

petitioner/1st defendant filed an application under Section 35 of the Indian Stamp

Act on the ground that the promissory note that was marked as Ex.A1 is

inadmissible in evidence, since the promissory note in question is not the one

payable on demand and sufficient stamp duty has not been paid. The Court below

on considering the contentions raised on either side, came to a conclusion that the

issue that has been raised by the petitioner can be gone into while dealing with the

suit. It can also be noticed that the Court below has also rendered certain prima

facie findings on the promissory note. But ultimately, the Court has held that the

burden of proof is only upon the respondent to prove her case and while

considering the same, the objection raised by the petitioner regarding the

promissory note marked as Ex.A1 can be taken into consideration. Aggrieved by

the same, the petitioner/1st defendant has filed the present Civil Revision Petition

under Article 227 of the Constitution of India.

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C.R.P.No.3344 of 2018

3.Heard Mr.N.Suresh, learned counsel appearing on behalf of the petitioner

and Mr.T.S.Baskaran, learned counsel appearing on behalf of the respondent.

4.Mr.N.Suresh, learned counsel for the petitioner mainly raised two

contentions. The first contention that was raised by the learned counsel for the

petitioner is that the plain reading of the promissory note clearly shows that it is a

promissory note payable otherwise than on demand and hence, the stamp duty

ought to have been paid under Article 49(b) Schedule 1 of the Indian Stamp Act

and whereas, the stamp that is available in the promissory note does not satisfy

this requirement. In view of the same, it was contended that the document itself is

inadmissible evidence for any purpose by virtue of proviso to Section 35 of the

Indian Stamp Act. To substantiate his submission, the learned counsel for the

petitioner placed reliance upon the judgment of this Court in P.Bency and Others

vs. Martin Mary reported in 2008 1 MLJ 638.

5.The second contention that was raised by the learned counsel for the

petitioner is that a plain reading of the alleged promissory note makes it very clear

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C.R.P.No.3344 of 2018

that no Sale Deed was executed and there was no occasion for the petitioner/1st

defendant to receive Rs.25,00,000/- (Rupees Twenty Five Lakhs only) and hence,

this can be tried atleast as a preliminary issue so that the suit itself can be brought

to an end at the earliest.

6.Per contra, the learned counsel for the respondent submitted that there is

absolutely no ground to interfere with the order passed by the Court below. The

learned counsel submitted that the contention raised by the learned counsel for the

petitioner is unsustainable, since Section 35 of the Indian Stamp