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TMI Blog1976 (12) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... ently stamped and as such is inadmissible in evidence? 2. After hearing the arguments of the learned Counsel for the parties, the learned single Judge came to the conclusion that the suit pronote being insufficiently stamped was inadmissible in evidence, but keeping in view the averments made by the plaintiff in Paras, 2 and 3 of the plaint, the learned single Judge held that the plaintiff-respondent was entitled to get relief on the basis of the original debt. Operative part of the judgment appealed against reads thus: The issue is disposed of accordingly, and it is held that the plaintiff is entitled to sue on the original debt and adduce other evidence in support thereof. Mr. Bhardawaj, the learned Counsel for the appellant has assailed the judgment under appeal on two grounds. His first contention is that once the learned single Judge held that no relief could be given to the respondent on the basis of the suit pronote, the provisions of Order XXXVII of the Civil P.C. ceased to apply to the suit and the suit amount being only ₹ 7,630.00, the High Court could not try the suit on its original side. The other contention raised by the learned Counsel is that the suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IR 1947 Mad 422, wherein Rajamannar, J. while relying upon an early Single Bench Judgment of the same Court in Alimana Sahiba v. Subbarayudu : AIR 1932 Mad 693 held that when the fact of execution of a document is admitted, Section 58 of the Evidence Act shall have full play, overriding any provision to the contrary in any other law including the Stamp Act. These authorities no doubt support the contention raised by Mr. Gupta, the learned Counsel for the respondent; but with due respect to the learned Judges we are unable to agree with the principle laid down in these authorities. 5. Section 35 of the Stamp Act to the extent it is relevant for the purpose of deciding this appeal is reproduced as below: No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped. A plain reading of this Section would show that it creates a three-fold bar in respect of unstamped and insufficiently stamped document; (1) that it shall not be received in eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR 1932 Mad 693 was not followed. With great respect to the learned Judges, the view taken in AIR 1932 Mad 693 and AIR 19471 Mad 422 is not correct and is opposed to the plain language of Section 35 of the Stamp Act (vide also Mullah's criticism, in Mullah's Stamp Act at P. 126); At another place in the same judgment, their Lordships observed as under: A perusal of the judgment shows that where a party is placed in such a predicament of not being able to validate a document by payment of penalty, he could nevertheless be awarded relief if the unstamped document was in the possession of the other side. With respect we are unable to agree with this view, in the first place, as observed earlier, Section 35 of the Indian Stamp Act operates as a clear bar and even the admission of the defendant cannot be relied upon by the plaintiff to award any relief to him. The attention of the learned Judge does not appear to have been drawn to an earlier decision in Subbiah Pillai v. Muthathal Achi, AIR 1946 Mad 457 in which it was held that even if the contesting party was in wrongful possession of an unstamped document, relief could not be given to the other side. Chandrasekhar Aiy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cument in evidence, so far as the parties are concerned, the matter is closed. Section 35 is in the nature of a penal provision and has far reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. The record in this case discloses the fact that the hundis were marked as Exs. P-1 and P-2 and before the endorsement admitted in evidence under the signature of the court. It is not therefore, one of these cases where a document has been inadvertently admitted, without the court applying its mind to the question of its admissibility. Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses. Section 36 of the Stamp Act comes into operation. Once a document has been admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r exhibited as such by the court without any objection, it cannot object to its admissibility at a later stage in the trial court nor even in the appellate or revisional court, and relief can be given by the court on the basis of such a document. 10. The suit pronote has not been admitted in evidence by the learned single Judge as such no relief can be given to the respondent on its basis in view of the clear bar contained in Section 35 of the Stamp Act. The contention raised by Mr. Gupta, therefore, fails. 11. This brings us to the argument made by Mr. Bhardawaj, the learned Counsel for the appellant that the learned single Judge had no material before him to make out a case of relief on the basis of original consideration in favour of the respondent. We are not impressed by this argument, however attractive it may be. Admittedly the loan - whatever its amount which may be ultimately found by the court -- was advanced in pursuance to the Hire Purchase Agreement between the parties. It cannot be gainsaid that even if the pronote is excluded the respondent would be entitled to a decree on the basis of the Hire Purchase Agreement on proof of its terms. The pronote cannot be con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he plaintiff can be allowed to fall back upon the basis of the original transaction, if the pronote is found to be inadmissible. 12. The learned Counsel has argued that his case squarely falls under the third test laid down in the said authority. We have gone through this judgment and we do not find that it supports the contention of the learned Counsel for the appellant. That there is no time gap between advancing a loan and execution of the pronote, may be one of the tests for holding that the pronote is not a collateral security but surely it cannot be the only test. We are in respectful agreement with the view taken by the Full Bench in Perumal Chettiar v. Kamakshi Ammal AIR 1938 Mad. 785 where their Lordships observed as follows: The fact that the execution of the promissory note is contemporaneous with the borrowing cannot exclude the possibility of the instrument having been given as collateral security or by way of conditional payment. Whether a suit lies on the debt apart from the instrument therefore depends on the circumstances under which the instrument was executed. Every case has to be decided on its own peculiar facts and as already observed the facts of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... averments in the plaint ex facie showed that the court did not have jurisdiction to try the suit. As the averments in the plaint in the present case clearly brought the suit within the ambit of Order XXXVII of the Civil P.C. the suit must be deemed to have been legally pending before the learned single Judge. 14. In taking this view we are fortified by a Full Bench judgment of the Patna High Court in Shyam Nandan Sahay v. Dhanpati Kuer AIR 1960 Pat 244 wherein their Lordships held as under: Where, however, there is no total lack of jurisdiction, but, on the contrary, the averments in the plaint, if not challenged manifestly bring the case within the jurisdiction of the court in which it is filed, its proceedings are perfectly within jurisdiction, and want of jurisdiction in such case, can rightly be waived. In other words this kind of defect in jurisdiction is not fundamental in character and does not amount to anything more than a mere irregularity in the exercise of jurisdiction. The lack of pecuniary jurisdiction comes under the latter of the above two kinds of defects, and therefore, is not fundamental in character. It can be waived by any of the parties, and, if not c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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