Omprakash Rathi vs Rajrajeshwari Stone Crusher and Others

Hon''ble Shri N.K. Mody, J.—Being aggrieved by the order dated 16/01/09 passed by II ADJ, Ratlam in Civil Suit No. 3-B/07 whereby the document tendered by the petitioner in evidence was rejected holding that the document is inadmissible in evidence, present petition has been filed.

Short facts of the case are that the petitioner filed a suit for recovery of Rs. 4,60,000/- alleging that the respondents entered into an agreement with the petitioner vide agreement dated 02/09/05 wherein it was alleged that the respondents have taken loan of Rs. 10,60,000/- against which cheques have been issued by the respondents in favour of petitioner. It was alleged that since the cheques were not honoured, therefore, money decree be passed against the respondents. The suit was contested by the respondents. After framing of issues at the stage of evidence when the alleged agreement was tendered in evidence the same was objected by the respondents on the ground that the document is not properly stamped, hence the same is inadmissible in evidence. The objection was upheld holding that the document is not an agreement but is a bond and is not stamped in accordance with the provisions of Indian Stamp Act, therefore, the same is inadmissible in evidence, against which present petition has been filed.

Learned Counsel for the petitioner argued at length and submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set aside. It is submitted that the document was agreement and the intention of the parties was to execute an agreement and not a bond, therefore, by no stretch of imagination it could be said that the document was required to be stamped as per Section 2(5) of the Indian Stamps Act. Learned Counsel placed reliance on a decision of this Court in the matter of Radhyshyam Mishra Vs. Premnarayan Sharma, wherein the agreement was executed between the parties on a plain stamp paper wherein he acknowledged receipt of the amount and agreed to repay the same and the agreement was also having a clause that the plaintiff would have a right to recover it from the defendant, this Court held that such document is an agreement and not a bond or promissory note. On the strength of aforesaid position of law Learned Counsel submits that the petition filed by the petitioner be allowed and the impugned order passed by the learned Court below be set aside.

Inspite of service of notice respondents are absent.

Section 2(5) of Indian Stamp Act defines the word ''bond'', which reads as under:

"Bond" includes

(a) any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be;

(b) any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another; and

(c) any instrument so attested, whereby a person obliges himself to deliver grain or other agricultural produce to another;

So far as the word "agreement" is concerned that has not been defined separately. However, the word ''conveyance'' has been defined u/s 2(10) of Indian Stamp Act, which reads as under:

Conveyance includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos and which is not otherwise specifically provided for by Schedule I.

From perusal of the document it is evident that the document is attested by the witness and as per the document number of cheques were issued by the respondents in favour of petitioner. Since the document in question does not fulfill other requirements for holding a document as bond, therefore, keeping in view the nature of the document it is clear that it was the agreement which was executed between the parties and not the bond. In view of this petition filed by the petitioner is allowed and the impugned order passed by the learned Court below is set aside.

With the aforesaid observations, petition stands disposed of.

No order as to costs.