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Judgment
Charles Arnold White, Kt., C.J.—The only evidence to which our attention has been invited as to the course of business of the Bank is the
statement contained in the letter of the Secretary to the Board of Revenue. In that letter, the course of business is thus described: The bank grants
loans on promissory notes payable on demand or otherwise. Before advancing money, it requires the borrower to make a declaration in the
confidential register in the form thereto annexed and to sign it."" A translation of the form to which the Secretary refers is annexed to the letter.
Beading the entries in the register by the light of the statement by the Secretary as to the course of business, I am unable to say that the entries in
the register show that the signing of the declaration, the execution of the note, and the advance of money by the bank were one and the same
transaction. I express no opinion as to whether, if it appeared on the face of the entries that the signing of the declaration, the execution of the note
and the advance of the money were one and the same transaction, the entries would require to be stamped as an agreement or a memorandum of
an agreement.
For the purposes of the question we have to consider, I am quite prepared to accept the proposition that, if the document in question is
evidence of an agreement, I do not say ''of an agreement and the terms thereof'', but if the document is evidence of an agreement-evidence that the
minds of the parties when the document was signed were ad idem with regard to the particular matter-in that case the document would require to
be stamped. Now can we infer from the statement as to the course of the business and the entries in the register that, when the declaration was
signed, the minds of the parties were ad idem with regard to the matter in question? It has to be observed that, according to the course of business
as stated by the Secretary, before the money is advanced the borrower is required to make a declaration. The Government Pleader has suggested
that implies that, if the declaration has been made, the Bank will, as a matter of course, make the advance. I do not think that implication
necessarily arises.
Now can it be said that there is evidence of an agreement which imposes an obligation of any kind on the bank? I think not. I do not think it can
be said, reading these entries, that, on the making of the declaration by the borrower, the Bank were under any obligation, forthwith or within a
reasonable time thereafter, to advance money. What is it on which the suggestion is based that we can read in these entries an agreement imposing
an obligation on the Bank? The Government Pleader concedes that the only words in the register are the words ""Hundi No. 179."" We have looked
into the original register, and we find that it is arranged in a tabular form. The first column is headed ""Hundi No."". The second column is headed
Date."" The first entry in the first column is ""179,"" that is, there is a reference to a hundi of which the number is 179. Then as regards the date in the
original register, the year and month are not given, but the day of the month which is stated appears to be the date on which the declaration was
signed. Whether that is intended to be the date of the hundi or whether it is intended to be the date of the making of the declaration, is not clear in
the original register. Now, we are invited, on the strength of this reference to a hundi (amount unspecified), to refer an agreement by the Bank to
make an advance on the signing of the declaration and to infer the fact that an advance was made. I do not think that, on such evidence, we should
be warranted in making that inference,-at any rate, for the purpose of deciding whether, under a fiscal enactment, this particular document is one
which is required to be stamped. Then can it be said that there is an agreement which imposes any obligation on the borrower? It had been
suggested that it is an undertaking by the borrower that, in consideration of the Bank advancing, money, he undertakes not to encumber the
property mentioned in the register. I cannot read the entry in the register as amounting to an agreement such as that. It seems to me so far as I can
see from what appears within the four corners of the document-, I do not know whether we are entitled to go outside it-it seems to me that what
the entry really represents is a statement by the would-be-borrower of the property of which he is in possession in order that the Bank might be
informed as to whether he is a man of substance and an undertaking by the would-be-borrower that, if the Bank advanced him money on his
promissory note, he would not encumber the property mentioned in the declaration until the Bank debt was discharged: and that the entries were
made, not for the purpose of recording an existing agreement between the parties or any memorandum of an existing agreement, but for the
purpose of enabling the Bank to decide whether in the course of their business, they would make the advance which was contemplated at the time
the declaration was signed. No doubt, the execution of a promissory note was in the contemplation of the parties at the time. No doubt, the coming
into existence of a Bank debt, was in the contemplation of the parties at the time. But for the reasons I have stated, I do not think that this
document can be treated either as an agreement or as a memorandum of an agreement. The Government Pleader, suggested that, ''until the Bank
debt is discharged'' should be read as indicating that the debt had already been incurred by the advance of money on the promissory note at the
time the declaration was signed. That seems to me to be inconsistent with the statement of the course of business by the Secretary that, before
advancing money, the Bank requires the borrower to make a declaration in the form prescribed.
For the purposes of the further argument that the Government Pleader addressed to us I will assume that on the signing of the declaration there
was a ""proposal"" or an ""offer."" The Government Pleader has referred to several authorities with regard to the question as to what is sufficient by
way of note or memorandum for the purpose of satisfying the 4th section of the English Statute of Frauds. There can be, I think, no doubt that
there is a considerable divergence between the line of authorities with reference to Section 4 of the Statute of Frauds and the other authorities to
which our attention has been called, the authorities under the stamp law. It seems to me that, if there be any conflict between the principles held
applicable in these two lines of authorities, we ought to follow the decisions, in connection with the matter which is now before us, that is; the stamp
law. If we turn to the authorities under the Stamp Acts, I think it may be said to have been established that a written proposal or a written offer
does not become subject to stamp duty by reason of subsequent acceptance which is not in writing. In Carlill v. Carbolic Smoke Bull Company
(1892) 2 Q.B., 484, Hawkins, J., lays down the law thus: ""No document requires an agreement stamp unless it amounts to an agreement, or a
memorandum of an agreement, The mere fact that a document may assist in proving a contract does not render it chargeable with stamp duty; it is
only so chargeable when the document amounts to an agreement of itself or to a memorandum of an agreement already made. A mere proposal or
offer until accepted amounts to nothing. If accepted in writing, the offer and acceptance together amount to an agreement; but, if accepted by
parol, such acceptance does not convert the offer into an agreement nor into a memorandum of an agreement, unless, indeed, after the acceptance,
something is said or done by the parties to indicate that in the future it is to be so considered;"" and the learned Judge cites several English decisions.
Among the authorities which he cites is Chaplin v. Clark (1849) 4 Ex. Rep., 403 . In that case, the action was brought by an allottee of shares in a
joint-stock company to recover the amount of deposits paid by him. The question arose as to whether a certain document required a stamp.
Maule, J., in the course of the argument, observed, ""If the contract was made by the letter of allotment, coupled with the payment of the deposit,
then it was not an agreement within the Stamp Act. An offer in writing accepted by parol does not require a stamp."" Then we have another
decision of the Exchequer Chamber in Clay v. Crofts (1851) 20 L.J., Ex., 361. That was the case of an action by a school-master who published
a prospectus, one of the terms being that pupils should not be removed without three months'' notice, subject to the payment of one term''s fee if
they were taken away without notice; a pupil was taken away without notice and the schoolmaster sued for the fee. There it was held that the
prospectus was a proposal, and not an agreement, and that no stamp was necessary. Parke, B., in the course of the argument, said: ""A
memorandum does not require a stamp where, being a mere proposal in the first instance, it afterwards becomes binding by subsequent matter.
Later on, he says, ""This was only a proposal at the time the prospectus was produced to the defendant. It becomes an engagement only when it is
qualified by an offer to reduce the terms. The defendant then makes a contract by his conduct. The defendant, by adopting the proposal, and
sending his sons to school, makes it a contract. There was only a proposal in the first instance and the case is not within the Stamp Act."" The
Government Pleader has invited us to say that the passage in the judgment of Hawkins, J., to which I have referred does not represent the law.
Speaking for myself, I am not prepared to say this. The conclusion at which I have arrived is that the document in question in the present case does
not require to be stamped as an agreement or as a memorandum of an agreement.
Sankaran Nair, J.
I agree
Tyabji, J.
A declaration in the form appended to the letter of reference, dated the 21st September 1911, cannot, it is, admitted, of itself constitute any
agreement. In order that an agreement may arise between the parties, such a declaration must be followed by some action on the part of the Bank,
indicating an acceptance by it of the terms contained in the declaration. It was argued before us that, when subsequently to the declaration, a loan
is made by the Bank, then there is a complete agreement, the terms of which are represented by the declaration, and that the declaration then
becomes an ""agreement or memorandum of an agreement"" within the terms of Article 5 of the Stamp Act; and must therefore be stamped as such.
According to this contention, therefore, the agreement or memorandum of agreement consists, partly of the declaration and partly of its parol
acceptance: the declaration is not, in itself, the whole contract: the declaration when read together with its acceptance by the Bank (such
acceptance being implied by the Bank making the loan) forms the contract. The decisions cited by the learned Chief Justice, viz., Clay v. Grofts
(1851) 20 L.J., Ex., 361, Chaplin v. Clarke (1849) 4 Ex. Ch., 403 , Hadsplet v. (1850) 9 C.B., 624 and Carlill v. Carbolic Smoke Ball Company
(1892) 2 Q.B., 484 show that the Courts in England have held that, under such circumstances, no stamp is necessary in England. The English
Stamp Acts, under which the decisions were given, are 55 Geo. Ill, c. 184 and 54 and 55 Vict., c. 39. The terms of those Acts are not materially
different from the terms of the Indian Stamp Act, 1899. I, therefore, agree that the reference should be answered in the negative, as indicated by
the learned Chief Justice. The document in question need not be stamped.