C.S. 130 of 2008 and EOS 8 of 2015 have been tried together as the issues and the parties involved in both the suits are common. So, these two suits can be decided by a common judgment.
In CS 130 of 2008 the plaintiff has prayed for a decree for Rs. 39,44,000.00, interim interest and interest on judgment @ 15% per annum and other reliefs.
The plaintiff’s case, in brief, is that the plaintiff by virtue of their cordial relationship and relying upon representations and assurances given by the defendant and believing the same to be true and correct had agreed to lend a sum of Rs. 29 lakhs and accordingly disbursed the said amount to the defendant by three A/c. payee cheques being nos. 765916 dated March 14, 2005, 765918 dated March 21, 2005 and 765919 dated March 30, 2005, respectively drawn on the Standard Chartered Bank, Shyambazar Branch, in favour of the defendant.
The defendant executed a Promissory Note on 8th March, 2005 acknowledging receipt of a sum of Rs. 29 lakhs undertaking to repay the said amount to the plaintiff by 30th June, 2005 which amount was duly encashed by the defendant and appropriated for his own benefit but the defendant in breach of his promise failed and neglected to repay the same.
The plaintiff issued legal notices dated 13th February, 2006; 29th March, 2006 and 31st March, 2006 through his Advocate by registered post, with acknowledgement due calling upon the defendant to repay the entire amount due within ten days of receipt of such notice which was duly received by the defendant and a reminder was issued on 31.3.2006 duly received by him but of no effect.
Hence the suit.
The defendant contested the suit by filing a written statement denying all material particulars made in the plaint and contended inter alia, that he never approached the plaintiff in March 2005 or on any date for temporary financial assistance for the said sum of Rs. 29 lakhs for the purpose of development of his business agreeing to repay the same within 30.6.2005.
Specific case of defendant is that the plaintiff entered into criminal conspiracy with some bank officials to make unlawful gain and committed fraud upon this defendant and denied having executed any Promissory Note on 8th March, 2005 acknowledging receipt of a sum of Rs. 29 lakhs and undertaking to repay the said sum by 30th June, 2005. The defendant by separate suit prayed for declaration of the promissory note dated 08.3.2005 as forged and null and void by filing a T.S. 28/2011 in the Court of 1st Civil Judge (Jr. Division), Sealdah which suit on being transferred to this Hon’ble Court, was registered as EOS 8/2015 for the defendant’s signature has been forged. According to the defendant, the purported notice of demand dated 13th February, 2006, 29th March, 2006 and 31st March, 2008, alleged to have been issued through the plaintiff’s Advocate calling upon this defendant to repay and amount was never received by this defendant.
On the above pleadings following issues are framed for determination of the disputes between the parties:
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 lakh 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?
Plaintiff has adduced in evidence following documents in support of his case:
1. Signature of Manjur Alam Mallick on the Promissory Note dated 8th March, 2005, Exhibit-A.
2. Signature of witness Suvankar Mukherjee on the Promissory Note dated 8th March, 2005, Exhibit-A1.
3. Signature of witness Anuradha Saha on the Promissory Note dated 8th March, 2005, Exhibit-A2.
4. Cheque being No. 765916 dated 14.3.2005 amounting to Rs. 5,00,000/-, Cheque being No. 765918 dated 21.3.2005 sum of Rs. 2,00,000/- and Cheque being No. 765919 dated 30.3.2005 sum of Rs. 22,00,000/- issued by Standard Chartered Bank in favour of Manjur Alam Mallick, Exhibit-B (collectively).
5. Signature of Mr. Rajib Saha, the plaintiff herein on the Cheque being No. 765916 dated 14.3.2005 sum of Rs. 5,00,000/- issued by Standard Chartered Bank in favour of Manjur Alam Mallick, Exhibit-B1.
6. Signature of Mr. Rajib Saha, the plaintiff herein on the Cheque being No. 765918 dated 21.3.2005 sum of Rs. 2,00,000/- issued by Standard Chartered Bank in favour of Manjur Alam Mallick, Exhibit-B2.
7. Signature of Mr. Rajib Saha, the plaintiff herein on the Cheque being No. 765919 dated 30.3.2005 sum of Rs. 22,00,000/- issued by Standard Chartered Bank in favour of Manjur Alam Mallick, Exhibit-B3.
8. Bank Statement dated 31.3.2005 issued by Standard Chartered Bank in favour of Mr. Rajib Saha, Exhibit-C.
9. Statement of Account duly certified by the United Bank of India, Shyambazar Market Evening Branch dated 08.5.2009 in respect of A/c. No. UML/3/03 standing in the name of M.A. Mallick of 6B, Bentick Street, Kolkata-700 001.
10. Legal Notice registered with A/D dated 13.2.2006 of Binita Kanjilal, Advocate of Barasat District Judge’s Court addressed to Monjur alam Mallick, Exhibit-E (collectively).
11. Legal Notice registered with A/D dated 29.3.2006 of Binita Kanjilal, Advocate of Barasat District Judge’s Court addressed to Monjur alam Mallick, Exhibit-F (collectively).
12. Signature of Binita Kanjilal, Advocate of Barasat District Judge’s Court on the Legal Notice registered with A/D dated 29.3.2006 addressed to Monjur alam Mallick, Exhibit-F1
13. Legal Notice registered with A/D dated 31.3.2006 of Binita Kanjilal, Advocate of Barasat District Judge’s Court addressed to Monjur alam Mallick, Exhibit-G (collectively).
14. Signature of Binita Kanjilal, Advocate of Barasat District Judge’s Court on the Legal Notice registered with A/D dated 31.3.2006 addressed to Monjur alam Mallick, Exhibit-G1.
15. Letter of Rajib Saha dated 05.12.2005 addressed to the Manager, Standard Chartered Bank, Shyambazar Branch, Kolkata, Exhibit-H.
16. Statement of Account No. 300028 period from 01.01.2001 to 20.3.2008 issued by United Bank of India, 128/1 Bidhan Sarani, Calcutta-700 004 addressed to Mallik Services 6B, Bentick Street, Kolkata-700 001, Exhibit-I (collectively).
17. Receipt of United Bank of India, SBM Account No. UML 3/03 dated 30.3.2005 a sum of Rs. 22,00,000/-, Receipt of United Bank of India, SBM Account No. UML 3/03 dated 21.3.2005 a sum of Rs. 2,00,000/- in favour of Manjur Alam Mallick and Receipt of United Bank of India, SBM Account No. UML 3/03 dated 14.3.2005 a sum of Rs. 5,00,000/- in favour of Manjur Alam Mallick, Exhibit-J (collectively).
18. Account Opening Form : Savings Bank Account of United Bank of India, Shyambazar Market Branch dated 15.07.2003 in favour of Manjur Alam Mallick and Tanima Islam, Exhibit-K.
19. Account Opening Form : Savings Bank Account of United Bank of India, Lal Bazar Branch dated 20.10.2000 in favour of Manjur Alam Mallick and Tanima Mallick, Exhibit-L.
20. Cheque No. 146810 dated 16.9.2004 a sum of Rs. 15,000/- issued by United Bank of India, Shyambazar (Evening) Market Branch in favour of M.A. Mallick, Exhibit-M.
On behalf of the defendant following documents have been produced and marked as exhibits in support of his case:
1. Indian Income Tax Return Verification Form, Assessment Year 2013-14 in favour of Rajib Saha, Exhibit-1.
2. Loans & Advances of Rs. 30,36,000/- on Auditors’ Report M/s. Pallavi Construction Balance Sheet, as on 31st March, 2005 in favour of Rajib Saha, Exhibit-1A.
3. Consignor signature on the receipt being No. K16575400 of DTDC Courier & Cargo Limited, Exhibit-2.
4. Certificate Ref. No. SBM/No Dues Certificate/ /2013 dated 07.8.2013 issued by United Bank of India, Shyambazar Market (Evening) Branch, Exhibit-4.
5. Letter dated 13.8.2015 of Surya Maity, Advocate of High Court, Calcutta addressed to the Branch Manager and PIO (under RTI Act, 2005), United Bank of India, Shyambazar Market (Evening) Branch, Exhibit-5.
6. Letter dated 17.5.2010 issued by Mallik Services, Prop. Manjur Alam Mallick addressed to the Manager, United Bank of India, Shyam Bazar Market Evening Branch, Kolkata, Exhibit-6
7. Specimen signature of Manjur Alam Mallick on the Letter dated 17.5.2010 issued by Mallik Services, Prop. Manjur Alam Mallick addressed to the Manager, United Bank of India, Shyam Bazar Market Evening Branchy, Kolkata, Exhibit-6A.
Decision with reasons
Issue Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10:
All the above issues being interlinked are taken up together for the sake of convenience in discussion and for brevity.
Mr. Swarnendu Ghosh, learned Advocate for the defendant has argued that the plaintiffs have relied on the statement of Standard Chartered Bank Exhibit-C for the period March 31, 2005 and relied therein the entry being Exhibits-C1, C2 and C3 in proving the facts that the said three cheques amounts were deducted from his account and credited to the defendant’s account. It is specifically submitted that the said three entries do not in any way mentioned as to in whose favour the said three cheques have bene cleared. The third entry Exhibit-C3 mentioned of one ‘Manju Alam Mal’ which is not the name of the defendant. It is further pointed out that in banking transaction accuracy with regard to spelling of name are very important. The defendant has disputed Exhibit-D being the statement of account allegedly in his name because the account holder of Exhibit-D is one M. A. Mallick who can be any one. It is also argued that the said account has a number bearing 'UHL/3/03' denoting United Housing Loan Account. Admittedly, the defendant and his wife Smt. Tanima Mallick had a housing loan account in their joint names but the said loan account was having No. UHL/15/03. The fact would appear from Exbt.-4 being the certificate issued by the United Bank of India wherein it states that the defendant and his wife jointly held the aforesaid United Housing Loan Account which stood liquidated in full and final term.
My attention is invited to the said Exhibit-D that same mentioned about a sanction limit of Rs. 40,000/- whereas in words it is written 40 lac. and the particulars of securities being an equitable mortgage of property. It also shows that account has been closed on 31st March, 2005. In this regard, it is stated that the plaintiff has not made any endeavour to enquire as to who had applied for the said loan account and who has executed the said Promissory Note. There is no copy of the agreement under the said UHL account and no detail of what properties have been mortgaged as per the said agreement and it is incumbent on the part of the plaintiff to prove that the account belongs to the defendant.
In rebuttal Mr. Sakya Sen, learned Advocate for the plaintiff has submitted that Exhibit-D was admitted in evidence without objection which is reflected from answer to question 52 of P.W.1 and no enquiry was necessary to be done by the plaintiff as the answers to questions 288-290 put to P.W.-1 during his cross-examination clearly goes to show that Exhibit-D was maintained by the defendant where three cheques as per the entry Exhibits-D1, D2 and D3 were cleared as on 16th March, 24th March and 31st March, 2005 in the account of the defendant. Exhibit-D mentioned about pro note to the extreme left of the said statement.
The defendant apart from creating doubt on the genuinity of the Exhibit-D has alleged that the name of the account holder mentioned in Exhibit-D is not that of the defendant no. 1. According to Mr. Sen, such contention apart from being self-defeating is a mutually destructive plea whereby his earlier plea that Exhibit-D is an outcome of fraud and manipulation is completely defeated. It is urged that the said Exhibit-D is the account of the said defendant no. 1 which can be demonstrated from the following facts:
a) From the entry dated 16th September, 2004 of account no. 30028 (Exhibit-I), it is evidence that a 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 issued with which the DW 1 was confronted and he admitted that the cheque issued in the name of M.A. Mallick and the amount covered there under was withdrawn on the basis of the signature made by him on the reverse of the cheque as the proprietor of Mallik Service which finds corroboration from answers to questions 200 to 208 of DW 1 in cross-examination. DW 1 has also admitted that M.A. Mallick, the A/c. payee of cheque no. 146810 [Exhibit- M] and Manjur Alam Mallick, the proprietor of Mallik Services are the one and the same person. It would also be evidenced from the reverse of the Exhibit-M that Manjur Alam Mallick, the proprietor of Mallik Services has withdrawn the amount of Rs. 15,000/- by way of the cheque no. 146810 drawn in the name of M.A. Mallick. It is pertinent to take note of the fact that if payee of cheque no. 146810 is not one and the same person, the bank would not have allowed the said withdrawal.
b) The identity of Manjur Alam Mallick and M.A. Mallick being self-same person is also testified from Exhibit-K where in the account opening form of Savings Account No. 2559, the defendant no. 1 has signed as M.A. Mallick showing him to be the account holder of the UBI, Lalbazar Branch as an introducer and finds corroboration by his evidence in answers to questions 176-186. Similarly, in the account opening form for Savings Bank Account in UBI, Lalbazar Branch of the defendant no. 1 and his wife, the defendant no. 1 has signed as M.A. Mallick in the space specimen signature. There are various documents as part of the Exhibit-L which bear the signature of the defendant no. 1 as M.A. Mallick including in the Voters Identity Card, Pan Card of the defendant no. 1.
Thus, I find on evidence that the documents Exhibits-B, B2 and B3 being the A/c. payee cheque no. 765916 dated 14.3.2005 for Rs. 5 lakhs, cheque no. 765918 dated 21.3.2005 for Rs. 2 lakhs and cheque no. 765919 dated 30.3.2005 for Rs. 22 lakhs in favour of Manjur Alam Mallick were issued by the plaintiff Rajib Saha and the said amount have been debited and withdrawn from the Savings Account No. 329-1-010182-9 of the plaintiff Mr. Rajib Saha maintained by him in Standard Chartered, Shyam Bazar Branch as per statement Exhibit-C vide entry Exhibit- C1, C2 and C3 and the said amount 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.
It depicts from the said statement Exhibit-D in its debit column that on different dates starting from 2nd November, 2004 till 7th January, 2005 aggregating to Rs. 31 lakhs were transferred by the defendant no. 1 to his account being OD 3/28 [Exhibit I admitted by him] standing in the name of Mallik Services being the proprietorship concern of the defendant no. 1.
It is pertinent to note that the court has the power under Section 73 of the Indian Evidence Act to compare the admitted signature disputed by a party and to form an opinion. It is also significant that despite an order dated 18th January, 2017 passed by this Court, no attempt was made on the part of the defendant no. 1 to take opinion of the handwriting expert with regard to his signature being Exhibit-A on the Promissory Note proved as Exhibit-A3, without any objection. The defendant no. 1 has not discharged his burden of prove that Exhibit- A on the Promissory Note is not his signature although a declaration to such effect has been prayed for in EOS 8 of 2015.
In this regard, in second fold argument 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) wherein it has been held that the terms of a contract to repay a loan of money with interest, having been settled and the money paid, a Promissory Note specifying these terms was executed later in the day by defendant and given to plaintiff. This promissory note was not stamped. In a suit brought to recover the unpaid balance of the loan on an oral contract to pay:
Held, that plaintiff could not recover. In that case the Munsif held that plaintiff was entitled to prove the payment of consideration which preceded the promise to pay and that he might have recovered had the suit not been barred by limitation, more than three years having elapsed form the date of the loan before the suit was filed.
In the case of Nazir Khan and another v. Ram Mohan Lal and another (AIR 1931 Allahabad, 183) wherein it has been held that verbal negotiations leading up to an express contract in writing cannot be set up as an independent contract and are not admissible in evidence as provided by Section 91. Moreover where there is an express promise, an implied promise will not be inferred.
It has been further observed that where money is lent on terms contained in a promissory note given at the time of loan, both the Promissory Note and the lending being part and parcel of the same transaction, the lender suing to recover money so lent must prove those terms of the Promissory Note. If for any reason such as the absence of a proper stamp, the Promissory Note is not admissible in evidence, the plaintiff is not entitled to set up a case independent of the note in view of the provisions of Section 91. He cannot recover the money by proving orally the terms of the contract.
In case of Ghulam Mohd. Labroo and other v. Habib Ullah (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.
In answer to counter the said contention of Mr. Ghosh for the defendants, Mr. Sen appearing for the plaintiff submitted that:
a) In the present case, 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).
b) 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. This is not so in the present case, therefore the Section 36 of the Stamp Act will apply with full force. Further the reliance placed upon AIR 1966 J & K 127 and AIR 1985 AP 26 by the defendant was of no avail as the instant case stands altogether on a different footing, as in the said cases the objection as to the admissibility was taken before the document was 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 relied on a decision in case of Javer Chand and others v. Pukhraj Surana reported in 1961 Supreme Court, 1655 it has been observed and held thus-
'The conclusion of the learned Trial Judge on issue No. 2 was in these terms:-
Therefore, in this case the plaintiff having paid the penalty, the two documents in suit having been exhibited and numbered under the signatures of the presiding officer of court and the same having thus been introduced in evidence and also referred to and read in evidence by the defendant's learned counsel, the provisions of sec. 36 of the Stamp Act, which are mandatory, at once come into play and the disputed documents cannot be rejected and excluded from evidence and they shall accordingly properly form part of evidence on record. Issue No. 2 is thus decided against the defendant."
The suit was accordingly decreed with costs, as stated above. On appeal by the defendant to the High Court, the High Court also found that the hundis were marked as Exs. P. 1 and P. 2, with the endorsement "Admitted in evidence" and signed by the Judge. The High Court also noticed the fact that when the hundis were executed in December, 1946, the Marwar Stamp Act of 1914 was in force and ss. 9 and 11 of the Marwar Stamp Act, 1914, authorised the Court to realise the full stamp duty and penalty in case of unstamped instruments produced in evidence. Section 9 further provided that on the payment of proper stamp duty, and the required penalty, if any, the document shall be admissible in evidence. It was also noticed that when the suit was filed in January, 1949, stamp duty and penalty were paid in respect of the hundis, acting upon the law, namely, the Marwar Stamp Act, 1914.
The High Court also pointed out that the' documents appear to have been Admitted in evidence because the Trial court lost sight of the fact that in 1947 a new Stamp Act had come into force in the former State of Marwar, amending the Marwar Stamp Act of 1914. The "new law was, in terms, similar to the Indian Stamp Act. The High Court further pointed out that after the coming into effect of the Marwar Stamp Act, 1947 the hundis in this case could not be admitted in evidence, in view of the provisions of s. 35, proviso (a) of the Act, even on payment of duty and penalty. With reference to the provisions of s. 36 of the Stamp Act., the High Court held that the plaintiffs could not take advantage of the provisions of that section because, in its opinion, the admission of the two hundis 'was a pure mistake'. Relying upon a previous decision of the Rajasthan High Court in Ratan Lal v. Dan Das (1), the High Court held that as the admission of the documents was pure mistake, the High Court, on appeal, could go behind the orders of the Trial Court and correct the mistake made by that Court. In our opinion, the High Court misdirected itself, in its view of the provisions of s. 36 of the Stamp Act. Section 36 is in these terms:-
"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."
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 our opinion, the High Court has erred in law in refusing to act upon those two hundis which had been properly proved- if they required any proof, their execution having been admitted by the executant himself. As on the finding,% no other question arises, nor was any other question raised before us by the parties, we accordingly allow the appeal, set aside the judgment and decree passed by the High Court and restore those of the Trial Court, with costs throughout. Appeal allowed.'
Reliance has also been placed in case of Shyamal Kumar Roy v. Sushil Kumar Agarwal reported in (2006) 11 Supreme Court Cases 331- Status of an instrument admitted in evidence but inadequately stamped-Applicability of S. 36 of the Stamp Act, disallowing the questioning of such admission in view of the specific requirement under S. 33 (as amended in West Bengal) obligating the receiving authority to impound an under stamped instrument-Held, if an instrument, though under stamped sought to be admitted in evidence is admitted without the other side objecting to it, the right to reopen the issue is lost.
'A duty has been cast upon the court to apply its mind when an instrument having insufficient duty is brought to its notice.'
It has been observed in paragraphs 14, 16 and 23 thus-
'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 61 providing 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
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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 insufficient 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.' In answer to question 38 Anuradha Saha, P.W.-2 has stated that cheques were not handed in her presence. She has stated in answer to questions 3, 4 and 5 that the Promissory Note was executed in the office room in her house but she was in her bed room when it was executed and when she was called in the office room Mansur Alam Mallick, Suvankar Mukherjee and her husband Rajib Saha were present but she has disagreed to the suggestion put to her in question no. 47 that the signature was not that of the defendant rather she affirmed that he had signed in her presence. It is in her cross-examination and it attains probative value. Therefore, argument on behalf of the defendant that since P.W.-2 has not seen the cheques being handed over to the defendant and the Bank Manager who is also the witness to the said Promissory Note not having been examined the fact has not been proved by the plaintiff cannot be accepted in view of the fact that Promissory Note Exhibit-A3 has been well proved as executed and signed by the defendant no. 1 and I am unable to agree with such contentions of Mr. Ghosh in view of Section 91 of Indian Evidence Act, 1872 that no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible. In the context of my findings in the above paragraphs bearing the principles as laid by the Hon’ble Apex Court in the above cited decisions that the Promissory Note is admissible in evidence in view of Section 36 of Indian Stamp Act, 1899 and on comparison of the signature of the defendant and scanning the evidence deposed by the parties to the suit, I hold that the plaintiff has proved the payment of the said sum of Rs. 29 lakhs on encashment of the said three cheques and utilization thereof by the defendant no. 1 and the defendant no.1 having promised to repay the said amount received by him vide Exhibit-A3, the plaintiff is entitled to a decree as prayed for in C.S. 130 of 2008. In the result, the plaintiff’s suit being C.S. 130 of 2008 succeeds and the suit being EOS 8 of 2015 filed on behalf of defendant is liable to be dismissed. Hence, ordered, that the suit being C.S. 130 of 2008 is decreed with costs and the plaintiff do get a decree for sum of Rs. 39,44,000.00 and interest @ 8% per annum on the judgment. It is further ordered, that the suit being EOS 8 of 2015 is dismissed, however, without any order as to costs. Department and all parties to act on the signed photocopy of this judgement.