1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1805 OF 1997 Sakalbhushan R. Aherkar Petitioner versus Ramakant V. Kulkarni Respondent Mr.Surel S. Shah for petitioner. None for the respondent. CORAM : A.S.OKA, J. DATE : 27th January 2010 JUDGMENT :- 1. Heard learned counsel for the petitioner. None appears for the respondent. The petitioner is the original plaintiff and the respondent is the original defendant. In a money suit filed by the petitioner, the Trial Court passed a decree. While passing the decree, in the operative part of the judgement, following direction was incorporated:- "III. Plaintiff is directed to supply proper General Stamp as per Stamp Act, along with penalty, as `bond' exh.24 for Rs.50,000/- is bearing inadequate stamp duty, on or before 23.3.1996. Failing which, decree will not be executed by the Court." An application was made for review of that part of the judgement and 2 order. The application for review has been rejected. The order on Review Petition has been impugned in this Writ Petition. 2. The learned counsel for the petitioner invited my attention to the observations made in paragraph 19 of the judgement. He submitted that there is an error apparent on the fact of record as the Trial Court proceeded on the assumption that the document at Exhibit-24 was a bond within the meaning of section 2(c) of the Bombay Stamp Act, 1958. He submitted that there is error apparent on the face of the record as the learned Trial Judge has not even considered the contents of the document. He submitted that after the document was marked as an exhibit, the issue regarding insufficiency of stamp could not have been considered. He invited my attention to the order passed in the review petition and submitted that merits of the case made out by the petitioner have not at all been considered. 3. I have given careful consideration to the submissions. In paragraph 19 of the judgement in the suit, the Trial Court has observed thus :- "19. Exh.24 is amounting to bond executed by defendant in favour of the plaintiff. Relying on the said bond, plaintiff has filed this suit. It is noticed that bond is not on proper general stamp, as per requirement under Bom. Stamp Act. Therefore it is necessary to give direction to plaintiff to supply General Fee Stamps 3 along with penalty, as per requirement of Stamp Act for the said insufficiently stamped bond." It appears from the judgement that the document was marked as an exhibit during the course of recording of evidence. 4. Clause (c) of section 2 of the said Act of 1958 reads thus :- "2. Definitions :- ... ... (c) "bond includes" - (i) any instrument whereby a person obliges himself to pay money to another on condition that obligation shall be void if a specified act is performed, or is not performed, as the case may be; (ii) any instrument attested by a witness and not payable to order or bearer, whereby, a person obliges himself to pay money to another; and (iii) any instrument so attested whereby a person, obliges himself to deliver grain or other agricultural produce to another." 5. A perusal of the document at Exhibit-24, a copy of which has been annexed to the petition, shows that the same has not been attested by any witness. Therefore, the document can be termed as a bond, provided, sub clause (i) of clause (c) of section 2 of the said Act was attracted. Clause (i) will be applicable when under an instrument a person obliges himself to pay money to another on condition that obligation shall be void if a specified act is performed, 4 or is not performed. A perusal of the document at Exhibit-24 shows that it records that the respondent had borrowed a sum of Rs.50,000/- on 7th October 1994. The document at Exhibit-24 is dated 13th October 1994. The said document acknowledges the receipt of sum of Rs.50,000/- on 7th October 1994 as a hand loan and records an assurance of the respondent that an endeavour will be made to repay the said amount within a period of six months. Thus, on plain reading of the document, it does not create any obligation. It records receipt of a loan amount of Rs.50,000/- by the first respondent and the assurance of the said respondent to make an effort to repay the amount within six months. 6. The learned counsel for the petitioner relied upon a decision of this Court in the case of Patel Stone Trading Co. Vs. Ramsing (AIR-1975-Bom-79). This Court considered the definition of bond under section 2(c) of the said Act. Paragraph 4 of the said decision reads thus :- "(4) The real test to decide as to whether a particular document is a bond or not, is to find out after reading the document as a whole as to whether an obligation is created by the document itself or it is merely an acknowledgement of a pre-existing liability. If there is merely an acknowledgement of pre-existing liability which could have been enforced apart from the document itself or it is merely an acknowledgement of a pre-existing liability. If there is merely an acknowledgement of pre-existing liability which 5 could have been enforced apart from the document itself, then the matter stands on a different footing. But if the document creates an obligation in itself with an express promise for payment of an amount, in my opinion such a document will have to be termed as a bond within the meaning of Section 2(c) (ii) of the Bombay Stamp Act." (Emphasis added) 7. As stated earlier, the document at Exhibit-24 does not create an obligation. It acknowledges a pre-existing liability. The acknowledgement is of loan transaction of Rs.50,000/-. The said liability could have been enforced independent of the document at Exhibit-24. That is why on plain reading of the document, sub clause (i) of clause (c) of section 2 of the said Act is not at all attracted. 8. There was an error apparent on the face of record as the learned Trial Judge proceeded on assumption that the document at Exhibit-24 was a bond. The learned Judge has not even considered what is set out in the document. 9. Hence, the review petition ought to have been allowed by directing deletion of clause (III) of the operative part of the judgement and decree. 10. Hence, I pass following order :- 6 (A) The impugned judgement and order dated 28th June 1996 is quashed and set aside; (B) Clause (III) of the judgement and order dated 23rd February 1996 in Special Civil Suit No.345 of 1995 stands deleted. The Review Petition is allowed accordingly. (C) Rule is made absolute in above terms with no order as to costs. (A.S.OKA, J.)