Soumen Sen, J.
The appeal is against a money decree.
There is a cross appeal preferred by the plaintiff in so far the decree document allow pendent lite interest. Both the appeal and the cross appeal are taken up together and disposed of by this common judgment.
The plaintiff filed a suit for recovery of a sum of Rs.39,44,000/- on account of money lent and advanced. The plaintiff alleged that in or about March, 2005 the defendant had approached the plaintiff for a temporary financial assistance to the extent of Rs.29 lakhs for the purpose of development of his business and agreed to repay the said amount within 30th June, 2005. The plaintiff claimed that the relationship between the parties was cordial and on the assurance that the plaintiff would repay the same within the aforesaid period, the plaintiff had given three account payee cheques bearing no.765916 dated 3rd March 2005, 765918 dated 21st March 2005 and 765919 dated 3rd March 2005 respectively drawn on Standard Chartered Bank, Shyambazar Branch aggregating to Rs. 29 lakhs towards loan.
In acknowledgement of the receipt of such sums the defendant executed a promissory note on 8th March 2005 and undertook to repay the said sum by 30th June, 2005. The plaintiff alleged that although the defendant had encashed the said three cheques and appropriated the entire amount for his own benefit, the defendant had neglected and refused to pay the said sum along with interest at the agreed rate. In spite of demand and legal notices dated 13th February, 2006, 29th March 2006 and 31st March 2008 the defendant had failed and neglected to pay the said sum. Hence the plaintiff filed the suit for recovery of the said sum along with interest aggregating to Rs.39,44,000/-.
The defendant had entered appearance and filed a written statement. In the written statement the defendant had denied the jural relationship of debtor and creditor as well as execution of the promissory note.
On the basis of the pleadings as well as the documents disclosed the learned Single Judge framed the following issues for trial:-
1) Is the instant suit maintainable either in law or in fact as framed?
2) Had the defendant encashed three cheques being nos. 765916 dated March 14, 2005, 765918 dated March 21, 2005 and 765919 dated March 30, 2005 respectively drawn by the plaintiff on the Standard Chartered Bank, Shyambazar Branch, in favour of the defendant?
3) Whether the defendant executed the promissory note dated March 8, 2005 promising to pay to the plaintiff an aggregate amount of Rs.29 lakhs only on or before June 30, 2005?
4) Whether the so called promissory note is inadmissible in evidence because of not drawing the same on proper stamp papers?
5) Whether the defendant acknowledged the receipt of the payment thereby indicating to repay the plaintiff?
6) Whether the signatures of the defendant appearing on the said Promissory Note is forged and was never executed by the defendant?
7) Whether the defendant is liable to repay the loan to the tune of Rs.29 lakh only alongwith interest as claimed by the plaintiff?
8) Whether the defendant received the legal notices dated February 13, 2006, March 29, 2006 and March 31, 2006, by putting his signature on the acknowledgement due cards. Whether his signatures appearing on the said A/D cards are forged?
9) Whether the plaintiff is entitled to get decrees as prayed for?
10) To what relief or reliefs, if any is the plaintiff entitled?"
On the basis of the oral and documentary evidence the learned Single Judge had arrived at the conclusion that the plaintiff had lent and advanced a sum of Rs.29 lakhs and the defendant had acknowledged the debt by executing the promissory note.
This decree is under challenge.
Mr. Swarnendu Ghosh, the learned Counsel appearing on behalf of the appellant/defendant has submitted that the said decree was passed on conjecture and surmise inasmuch as the judgment suffers from error of law. Mr. Ghosh submits that the defendant had never acknowledged the execution of the promissory note. It was throughout the contention of the appellant that the signature appearing on the promissory note is not that of the defendant. The defendant in fact, filed a suit for declaration that the said document is forged and/or fabricated. Mr. Ghosh has also taken us through the pleadings of EOS 8 of 2015 in which challenge was thrown to the execution of the promissory note. It is submitted that the learned Single Judge has misinterpreted Section 36 of the Indian Stamp Act as the said section deals with the mode of proof of a document and it is well settled that mere marking of a document as exhibit does not prove the contents of the said document. It is submitted that the learned Single Judge ought not to have proceeded on the basis of the promissory note as the said document is in admissible in evidence, inasmuch as the transactions were never proved by the plaintiff.
Mr. Ghosh learned Advocate for the defendant submitted that the Promissory Note not being properly stamped is inadmissible in evidence and by virtue of Section 35 of the Stamp Act it cannot be looked into or acted upon and in accordance with Section 91 of the Indian Evidence Act. It is also submitted that as per Article 49, Schedule -1A of the Indian Stamp Act, 1899 read with Article 13(b) of the said Act, the Promissory Note for the value of Rs. 29 lakhs ought to have been executed by making payment of stamp duty of Rs. 3600/- and in support of such contention reference has been made to a decision in case of Pothi Reddi v. Velayudasivan (Indian Law Reports, Vol. X, page 94).
Mr. Ghosh submits that in the instant case money was lent on terms contained in a promissory note given at the time of loan, both the promissory notes and the loan per se being part and parcel of the same transaction. In such a situation the plaintiff as lender swing to recover money allege to have been lent must prove those terms of the promissory note. If for any reason as such the absence of the proper stamp, the promissory note is not admissible in evidence. The plaintiff would not be entitled to set up a case independent of the note in view of the provision of Section 91 of the Evidence Act. He cannot recover the money by proving orally the terms of the contract. Reliance has been placed by Mr. Ghosh in Nazir Khan And Anr. vs Ram Mohan Lal And Anr. reported at AIR 1931 All 183.
Mr. Ghosh refers to Ghulam Mohd. Labroo and other v. Habib Ullah reported at AIR 1966 Jammu & Kashmir, 127 wherein it has been held that when the terms of the entire contract between the parties are reduced to the form of the Promissory Note and the advance of the loan the execution of the Promissory Note are part of the same transaction, the provisions of Section 91 of Evidence Act are a clear bar to any other evidence except the pronote and if the pronote is inadmissible in evidence the whole suit must fail, if pronote is not properly stamped.
Mr. Ghosh has taken us through the evidence of the plaintiff and submitted that there is a contradiction in the pleading and the depositions of the wife of the plaintiff with regard to the execution of the promissory note. Mr. Ghosh has submitted that in examination-in-chief Mr. Rajib Saha has stated that the promissory note was prepared by Monjur Alam Mallick and made over to the plaintiff and this was witnessed by Mr. Subhankar Mukherjee the then bank Manager of United Bank of India, Market Evening Branch, Shyambazar as also by Anuradha Saha, the wife of the plaintiff. The witness stated that the said promissory note was executed at the office room of the plaintiff at his residence whereas in the plaint it is alleged that the said promissory note was executed and signed by the defendant at his office at 6B Bentick Street, Kolkata within the jurisdiction of this court.
Mr. Ghosh submits that there is a variation between the pleading and the proof. Moreover, the three cheques which appear to be the sheet anchor of the plaintiff were never received by the defendant nor it was utilized by the said defendant for any purpose. The defendant is not the beneficiary of the said amount. Mr. Ghosh refers to the statement of accounts of the Standard Chartered Bank and submits that the three entries relied upon by the plaintiffs in the said statement of accounts to show that the beneficiary of said three cheques are the defendant, has not proved by any cogent evidence as the cheques did not mention the name of the plaintiff at all. It refers to one Manju Alam Mal a different person. The name of the defendant is Monjur Alam Mallick.
Mr. Ghosh has disputed Exhibit D being the statement of account alleged to be of the defendant since the account holder of Exhibit D is one M.A. Mallick who can be anyone. Mr. Ghosh has argued that the said account has a number bearing "UHL/3/03" denoting housing loan account. Although it is not denied that the defendant and his wife Smt. Tanima Malllick had a housing loan account in their joint names but it was argued that the said loan account had a different number being "UHL/15/03". Mr. Ghosh has referred to Exhibit 4 being the certificate issued by the United Bank of India wherein it states that the defendant and his wife jointly held the aforesaid loan account which stood liquidated in full and final terms.
Mr. Ghosh has also drawn our attention to the show that the said document mentioned sanction limit of Rs.40,000/- whereas in words it is written as forty lakhs. It also mentions that it is in respect of an equitable mortgage of property. The said document also shows that the account was closed on 31st March, 2005. Mr. Ghosh submits that the plaintiff in this proceeding has not been able to establish that the said loan account belongs to the defendant. Moreover no copy of the agreement of the said housing loan account and no details of the property alleged to have been mortgaged in terms of the said agreement were disclosed. Mr. Ghosh submits that if the plaintiff wants to sign a judgment in its favour, it is incumbent upon the plaintiff amongst others to prove that the account belongs to the defendant.
Per contra, Mr. Sakya Sen, learned Counsel appearing on behalf of the plaintiff/decree holder submitted that the plaintiff is the beneficiary of three cheques. In fact, all the cheques were drawn in the name of Monjur Alam Mallick the proceeds of the said three cheques have gone to an accountmaintained by the defendant with the Shyambazar Branch of United Bank of India since closed after March, 2015. Mr. Sen has referred to the three cheques being Exhibit C, C1 and C2 and has drawn our attention to the original signature of the defendant in the written statement and the signature of the defendant in the promissory note in order to establish that the amount was withdrawn by the defendant the allegation of forgery of the promissory note is a clear afterthought and a frivolous plea.
Mr. Sen submits that the Promissory Note dated 8th March, 2005 was admitted in evidence on 23.4.2015. The Promissory Note was tendered and marked as Exhibit-A3. No objection on behalf of the defendant no. 1 is recorded at the time when such document was being admitted in evidence. As such, by reason of Section 36 of the Indian Stamp Act, 1899, the defendant no. 1 is estopped from raising any objection as to the admissibility of Exhibit-A3. In this regard, the plaintiff relies on the decision reported at AIR 1961 SC 1655 (Javer Chand & Ors. v. Pukhraj Surana) and (2006) 11 SCC 331 (Shyamal Kumar Roy V. Sushil Kumar Agarwal).
Mr. Sen further submits that it is wholly immaterial that the defendant raised an objection that the promissory note was insufficiently stamped at the time of hearing of an appeal from the decree passed in the Chapter XIIIA proceeding. When the matter was being tried as a regular suit in terms of the order of the Hon'ble Division Bench, no objection was raised when the plaintiff produced the Promissory Note and marked the same as Exhibit-A3 through PW-1. Accordingly, the defendant is precluded by Section 36 of the stamp act to object to the admissibility of the Promissory Note [Exhibit-A3]. Judgment cited by the defendant reported in AIR 1936 CAL 164 is not applicable as it did not consider the effect of Section 36 of the Stamp Act. The other judgment cited by the defendants reported in AIR 1931 All., 183, is clearly distinguishable on facts. The Allahabad High Court in the said judgment held that once the ex parte decree is set aside, the order admitting the document into the evidence also fell and the court had the authority to adjudicate all issues including those of admissibility. Mr. Sen has argued that other decisions are not applicable as in those cases the objection as to the admissibility was taken before the document marked as exhibit whereas in the instant case the promissory note was marked as exhibit without any objection. Hence, by virtue of Section 36 of the Stamp Act, the defendants are barred from questioning its admissibility.
Mr. Sen submits that the promissory note was duly proved at the trial and the said the document was marked as exhibit without objection. Mr. Sen submits that the statement of account produced during trial would show that the proceeding of the cheques were utilized by the appellant to redeem a mortgage of a property. These entries read with the promissory note clearly establish the case of the plaintiff beyond any doubt.
We have gone through the exhibits as well as the pleadings. We have read the judgment carefully.
The plaintiff in support of its claim, inter alia, has relied upon. Exhibit D series, Exhibit I, M and K which in our view read with other evidence has established the loan transaction. Exhibit D was admitted in evidence without objection which would be reflected from answer to question no.52 of PW 1 and no enquiry was necessary to be done by the plaintiff as the answers to questions 288-290 put to PW 1 during his cross examination has clearly established that Exhibit D being the statement of account was maintained by the defendant where three chqeues as per the entry being Exhibit D1, D2 and D3 were cleared on 16th March 2005, 24th March 2005 and 31st March 2005 in the account of the defendant. Exhibit D also mentions about the pro-note to the extreme left of the said statement. Mr. Sen has referred to the entry dated 16th September 2004 of account number 30028 (Exhibit I) from which it is clear that the cheque no. 146810 for a sum of Rs.15,000/- has been withdrawn/debited in the name of M.A. Mallick. The said cheque was produced by the branch manager in response to the subpoena. The DW 1 was confronted with the said cheque during his cross-examination. The defendant during cross examination admitted that the cheque was issued in the name of M.A. Mallick and the amount mentioned in the said cheque was withdrawn on the basis of his signature on the reverse of the cheque as the proprietor of Mallick Service. This evidence was corroborated from answers to questions 200 to 208 of DW 1 in cross examination.
Mr. Sen has drawn our attention to the deposition of DW1 which shows that DW1 has admitted that M.A. Mallick, the beneficiary of account payee cheque no. 146810 (Exhibit M) and Monjur Alam Mallick, the proprietor of Mallick Services is the one and the same person. It is also evident from the said exhibit that Monjur Alam Mallick, proprietor of Mallick Services has withdrawn a sum of Rs.15,000/- by cheque no.146810 drawn in the name of M.A. Mallick. Mr. Sen has referred to Exhibit K being the account opening form of Savings Account no.2559 to establish the identity of Monjur Alam Mallick and M.A. Mallick as one and the same person. It appears from the account opening form that the defendant no.1 had signed as M.A. Mallick showing him to be the account holder of UBI, Lalbazar Branch as an introducer and this is acknowledged by him in answers to questions 176-186 in cross examination. Similarly, in the account opening form for Savings Bank Account of UBI, Lalbazar Branch of the defendant and his wife, this defendant has signed as M.A. Mallick in the space provided for specimen signature. Mr. Sen has referred to various other documents as part of Exhibit L which bear the signature of defendant no.1 as M.A. Mallick including the name shown in the voters identity car and PAN card of the defendant no.1.
The learned Judge has taken into consideration the documents being Exhibit B, B2 and B3 being the account payee cheque nos. 765916 dated 14th March, 2005 for Rs.5 lakhs, cheque no.765918 dated 21st March, 2005 for Rs.2 lakhs and cheque no.765919 dated 30th March, 2005 for Rs.22 lakhs in favour of Monjur Alam Mallick were issued by the plaintiff. The said amount had been withdrawn by debiting the savings account no.329-1- 010182-9 of the plaintiff maintained by him in the Standard Chartered Bank, Shyambazar Branch as appearing from Exhibit C being the statement of account vide Exhibit C1, C2 and C3 being the relevant entries duly identified and proved by the plaintiff and the said amounts were credited to the account of M.A. Mallick and was encashed and utilized by the defendant which is evident from Exhibit D being the mortgage loan account of the defendant no.1. We find from the debit column of Exhibit D that on different dates starting from 2nd November, 2004 till 7th January, 2005 a sum aggregating to Rs.31 lakhs were transferred by the defendant no.1 to his account being OD-3/28 (Exhibit I) standing in the name of Mallick Services being the proprietorship concern of the defendant no.1. The defendant no.1 has admitted Exhibit I.
It is significant to mention that although the defendant no. 1 has alleged that the promissory note is forged but he did not make any attempt to prove that the signature of the defendant appearing on the promissory note is not his signature. He did not obtain any opinion of the handwriting expert nor any evidence was adduced to establish his claim of forgery which is the subject matter of the suit being EOS 8 of 2015. The said suit originally numbered as T.S. 28/2011 was filed by the defendant no. 1 before the 1st Civil Judge (Jr. Division), Sealdah presumably as a counter-blast to the suit filed by the plaintiff in 2008. It was during the pendency of this said suit the story of forgery was spun without realizing that one day the defendant would be required to establish its claim in the suit. In absence of any expert evidence the court is empowered under Section 73 of the Indian Evidence Act to compare the admitted signature disputed by a party with the dispute signature to form an opinion. It is significant to mention that despite an order dated 18th January, 2017 passed at the instance of the defendant no attempt was made by the defendant no.1 to take an opinion of a handwriting expert with regard to his signature being Exhibit A on the promissory note. The defendant thereby has abandoned his claim of forgery. The promissory note was marked as Exhibit A3 without any objection. We have perused the signature of the defendant in the written statement as well as in the Title Suit filed before the City Civil Court and compared the said original signatures with the disputed signature in the promissory note being Exhibit A3 and we are of the opinion that there are more similarities than differences. In fact, we do not find any noticeable difference between the admitted and the so-called disputed signature. We have also considered the argument of Mr. Ghosh that the promissory note could not have been taken into consideration as acknowledgment of debt and no judgment could be pronounced on the basis of the promissory note. Even if we accept for the sake of argument, although we do not have any doubt in our mind that the objection as to the admissibility of the promissory note is completely unfounded, still there are enough evidence on record to establish jural relationship between the parties. The money was not given gratuitously. We have gone through the relevant depositions where the promissory note was tendered in evidence. The said document was tendered during examination in chief of PW1. The relevant questions are question nos. 10 to 21 of PW1 in examination in chief. The plaintiff in answer to the said question in chief has not only identified the signature of the witnesses to the said document but also prove the contents and only thereafter the said document in original was tendered in evidence and marked as Exhibit A3. The said document was tendered after answer to question no.21 was complete and thereafter the court records "the document is tendered and marked as Exhibit A3". This clearly shows that at the time of marking the document as exhibit no objection was raised by the defendant as to the admissibility of the said document on the ground that the said document is insufficiently stamped. It is well settled by a long catena of decisions that if a party fails to raise any objection with regard to the admissibility of the document on the ground of any defect like insufficiency of stamp, the said party is clearly estopped from raising any objection at the hearing of the suit regarding its admissibility. The objection if any, has to be raised at the time when the document is tendered in evidence and not subsequently for the simple reason that if such objection is considered to be valid then a party would have a chance to remove the defects and or deficiency in the document in order to make it admissible.
This principle is recognized in R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami and V.P. Temple and Anr. reported at 2003 (8) SCC 752 where the Hon'ble Supreme Court has classified two kinds of objections relating to admissibility of the evidence, the classifications are (i) objection that the document sought to be proved is itself inadmissible (ii) objection directed not against the admissibility of the document but against the mode of proof thereof on the ground of irregularity or insufficiency.
It is stated that the objection under category (i) can be raised even after the document has been marked as exhibit or even in appeal but the objection in category (ii) can be raised when the evidence is tendered but not after the document has been admitted in evidence and marked as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enable the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular.
It is not open to a party to object to the admissibility of documents which are marked as exhibits without any objection from such party. Once a document is properly admitted the contents of that document are also admitted in evidence though those contents may not be conclusive evidence. (P.C. Purushothama Reddiar vs. S. Perumal, AIR 1972 SC 608).
The provision of Section 36 of the Indian Stamp Act requires that where an instrument has been admitted in evidence, such admission shall not except as provided in Section 61 be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. In Javer Chand and Ors. vs. Pukhraj Surana reported in 1961 SC 1655 this section has been interpreted thus:-
"That section is categorical in its terms that when a document has once been admitted in evidence, such admission cannot be called in question at any stage of the suit or the proceeding on the ground that the instrument had not been duly stamped. The only exception recognised by the section is the class of cases contemplated by s. 61, which is not material to the present controversy. Section 36 does not admit of other exceptions. Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the Court, rightly or wrongly, decides to admit the document 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 bore the endorsement 'admitted in evidence' under the signature of the Court. It is not, therefore, one of those 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, s. 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction"
In Shyamal Kumar Roy vs. Sushil Kumar Agarwal reported in (2006) 11 SCC 331 the relevant discussions are in paragraphs 14, 16 and
23. It states:
"14. Section 36, however, provides for a 'stand alone' clause. It categorically prohibits a court of law from reopening a matter in regard to the sufficiency or otherwise of the stamp duty paid on an instrument in the event the same has been admitted in evidence. Only one exception has been made in this behalf, viz., the provisions contained in Section 61providing for reference and revision. In a case where Section 33 of the Act, as amended by West Bengal Act would be applicable, the proviso appended to Sub-Section (5) carves out an exception that if no action would be taken after a period of four years from the date of execution of the instrument.
16. The said decision, therefore, is an authority for the proposition that Section 36 would operate even if a document has been improperly admitted in evidence. It is of little or no consequence as to whether a document has been admitted in evidence on determination of a question as regards admissibility thereof or upon dispensation of formal proof therefor. If a party to the lis intends that an instrument produced by the other party being insufficiently stamped should not be admitted in evidence, he must raise an objection thereto at the appropriate stage. He may not do so only at his peril.
23. It may be true that the object of Indian Stamp Act is to collect revenue and the amendments carried out by the State of West Bengal provides for more stringent steps in that behalf. It may also be true that by reason of Sub-Section (4) of Section 33 of the West Bengal Act, a duty has been cast upon the court to apply its mind when an instrument having insuf
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ficient stamp duty is brought to its notice, but, only thereby Section 36 of the Indian Stamp Act cannot be made inapplicable. Section 36, as indicated hereinbefore, applies on its own force." Ms. Anuradha Saha has proved her signature in the promissory note. Ms. Saha as one of the witnesses of the promissory note, has maintained her stand throughout that she signed the said promissory note in presence of three persons including the bank manager. The signature of the defendant no.1 in promissory note cannot be disputed since we have already held that the said signature taken with the other admitted signatures of the defendant clearly establish that the defendant no.1 had signed the said promissory note. The defendant no.1 could not prove at the trial that the signature of the defendant no.1 appearing on the promissory note is not her signature. Mr. Ghosh has submitted that there is no conclusive evidence of any loan given to the defendant. In a civil trial unlike a criminal trial the Court has to arrive at its finding on the basis preponderance of probabilities. The narration of events and the analysis of the evidence adduced by the respective parties clearly establish that the defendant had received money from the plaintiff and the amount was not returned. Since the defendant had alleged that no amount had received by the defendant from the plaintiff, the defendant possibly cannot raise any objection the purposes for which the money was given once it is proved that money had reached the account of the defendant and not paid gratuitously. The plaintiff has stated that the defendant had taken a loan for a sum of Rs.29 lakhs in three tranches and has proved receipt of the money by the defendant as reflected in its bank account. The arrangement seems to be that, in the event the loan is repaid on or before 30th June, 2005 the defendant would not be required to pay any interest on Rs.29 lakhs. But that by itself does not disentitle the plaintiff to claim interest in case of default and in absence of any agreement to the contrary the claim for interest for the period beyond 30th June, 2005 cannot be denied. The plaintiff filed the suit within the period of limitation and in our view is entitled to interest at the rate of 6% per annum simple on Rs.39,44,000/- from the date of institution of the suit until realization. To the aforesaid extent the cross appeal is allowed. The decree of the learned Single Judge is modified to the aforesaid extent. The appeal preferred by Monjur Alam Mallick is dismissed with costs assessed at Rs.25,000/- to be paid by the appellant to the Member Secretary, High Court Legal Services Authority within two weeks from date. The Member Secretary shall utilize the said fund for "Juvenile Justice". The department is directed to draw up the decree as expeditiously as possible. Later: After the pronouncement of the judgment the learned counsel appearing on behalf of the Monjur Alam Mallick has prayed for stay of operation of judgment. The said prayer is considered and rejected.