Kistnappa V. Rutnam

1914 Present: Pereira J. and De Sampayo A. J.

KISTNAPPA v. RUTNAM.

51-D. C. Colombo, 37, 084.

Instrument admitted in evidence-Cannot be called in question at a later stage on ground that it was not duly stamped-" Guarantee "- Should it be stamped as a promissory note ?-Stamp Ordinance.

When an instrument is once admitted in evidence in a case, the admission cannot be called in question in any subsequent stage of the same case on the ground that the instrument has not been duly stamped.

The expression " promissory note " is, by the Stamp Ordinance, 1909, defined for the purposes of the Ordinance to include, inter alia, " a note promising the payment of any sum of money upon any condition or contingency which may or may not be performed or happen. "

Held, per Pereira J. (De Sampayo A. J. dissentiente), that a document whereby A promised to pay B a certain sum of money at the expiration of a certain time, if within that time the maker of a certain promissory note failed to pay B the amount of that note, although it was in effect a guarantee, was, in terms of the definition above, liable to stamp duty under the Ordinance as if it were a promissory note.

THE facts are set out as follows in the judgment of De Sampayo A. J.: -

" On November 4, 1910, the plaintiff lent to S. L. O. Marikar and P. G. Weerasinghe a sum of Rs. 1, 000 on a promissory note payable on demand, and on the same day the defendant granted to the plaintiff the document P 1, which is in the following terms: -

I, the undersigned, do hereby guarantee payment of a sum of Rs. 1, 000 only to K. M. N. M. Kistnappa Chetty (the plaintiff) within three months of the date hereof, in the event of S. L. O. Marikar and P. G. Weerasinghe, or either of them, failing to pay the sum of Rs. 1, 000 due from them to the said K. M. N. M. Kistnappa Chetty on a promissory note dated the 4th day of November, 1910.

(Signed) V. Rutnam.

The plaintiff declared upon this document as upon a guarantee given by the defendant for the payment of Rs. 1, 000 by the principal debtors, S. L. O. Marikar and P. G. Weerasinghe. The defendant practically admitted the averments in the plaint, but denied that any cause of action had accrued to the plaintiff on the above agreement, and further pleaded that the plaintiff by extending the time

of payment by the debtors had discharged the defendant from his liability as guarantor, and that this action was not maintainable without the principal debtors being first sued. At the trial certain issues were framed on these pleadings, and when the plaintiff tendered the document P 1 in evidence it was objected to as not being stamped. The trial, however, proceeded, and the document having been subsequently stamped as an agreement under the provisions of section 36 of the Stamp Ordinance, No. 22 of 1909, the District Judge admitted it in evidence and gave judgment for the plaintiff.

The defendant appealed.

A. St. V, Jayewardene, E. W. Jayewardene, and Chitty, for defendant, appellant.

Bawa, K. C., and Morgan de Saram, for plaintiff, respondent.

Cur. adv. vult.

March 3, 1914. Pereira J. -

I think that the District Judge is right in holding that the document P 1 is a " contract relating to a promissory note. " The case cited by him supports that view. But I cannot agree with him in thinking that the document is not to be treated as a promissory note for the purposes of the Stamp Ordinance, 1909. No doubt the document is in effect a guarantee; but it is, nevertheless, what is known as a non-mercantile promissory note in terms of the second part of the definition given in section 3, sub-section (21), of the Ordinance and it is liable to stamp duty accordingly, although it may operate as a guarantee. The Ordinance makes a note promising payment of a sum of money on a contingency which may or may not happen a promissory note for the purposes of the Ordinance. Document P 1 is in plain language a promise by its

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