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. SEENI MUTTU v. MEERA SAllBO.
D. C., Putialam, 1,364.
Prescription—Ordinance No. 22 of 1871, ss. 6, 7—Written agreement to paycertain moneys—Endorsement on document showing receipt of interest—Receipt not stamped—Inadmissibility of document to prove payment ofinterest so as to avoid prescription.
Plaintiff sued to recover certain moneys due upon a written .agreement whichwas prescribed except for the payments of interest which appeared on theback of the document.
Held, that, for want of . stamp duty payable on each of the endorsements,the plea of prescription should prevail, unless the plaintiff paid the duty andpenalty provided by the Stamp Ordinance-.
The plaintiff was given a month’s time to produce a certificate from theCommissioner of Stamps that the duty and penalty have been paid.
LAINTIFF sued upon a document, which he called a bond,by which the defendant admitted having borrowed from the
plaintiff Rs. 220, and bound himself to pay interest thereon andsupply every month 9 params of coppera to the plaintiff at the-
Febru ary 13,
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rate of Rs. 50 per param. He claimed a sum of Rs. 440 as dueto him upon the transaction. The defendant pleaded certainpnyments and .prescription under section 6 of Ordinance No. 22of 1871.
The District Judge, having held that the receipts of money®which appeared, endorsed on the document – sued upon saved thecase from the operation of section 6 of the Ordinance No. 22 of1871, gave judgment for plaintiff.1
The defendant appealed.
H. Jayawardene, for appellant.—The document sued upon isnot a bond. In Tissera v. Tissera (2 N. L. R. 238) a bond wasdefined 'by the Supreme Court to be the acknowledgment of apromise to pay a debt in an instrument attested by a notary.The document in suit was not attested by a notary. . See alsoKumaravelu v. Bawa (Wendt, 297); Mohamed Ali Mar Hear v.Assen Naina Marikar (1 C. L. R. 40). Section 6 of the Prescrip-tion Ordinance does not therefore apply to the present case-. ■Section' 7 governs the case. It provides that no action shall bemaintainable upon a written agreement unless such action shall,be brought within six years from the date of the breach thereof, orof the last payment of interest. Here no payments ■ are proved,because, though the written agreement bears on the back of itcertain entries showing moneys received on account, yet as eachof those endorsements has not been duly stamped as a receipt,the plaintiff cannot be allowed t-o benefit by such endorsements.
A receipt must bear a 5-cent stamp, under the Ordinance No. 3of 1890.
Sampayo, for plaintiff, respondent.—The defendant does notdispute the payments appearing on the back of the document.He does not object to them in -his petition of appeal. [Bonsek,O.J.—We cannot look at the endorsements for want of receiptstamps, and therefore -there is ho proof of any payment.] Ifplaintiff is given an opportunity to question the defendant,, hewill verbally admit the payments. [Bo.vser, C.J.—Even if hedoes so, you will have to pay the penalty provided by the StampOrdinance. Otherwise, by agreement between parties, the revenuemay be defrauded.]
13th February, 1902. Bonser, C.J—
1 am of opinion that the document sued upon is not a bond.It falls under section '7 of the Ordinance No. 22 of 1871, and wasprescribed, unless it has been kept alive by payments of interestwithin six years. On the document were certain receipts of interest*
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which would, if they were proved, be sufficient to keep the debt 1902.alive. The objection was taken that these receipts ought to have ternary 13.been stamped, but the plaintiff insisted that they did not require bon8eb,C.J.stamping, and the District Judge upheld that contention. Itwas suggested in argument that the decision arose out of a mis-understanding of one of the exemptions under the heading of“ Receipts.” However, whether that be so or not, it seems- to methat these Receipts were inadmissible in evidence without beingstamped.
We will give the plaintiff an opportunity of putting himselfright with the revenue authorities. The case will stand over fora month for that purpose.
The appeal will be dismissed, subject to his producing to theRegistrar of this Court a certificate from the Commissioner ofStamps that the duty and penalty have been paid. If within amonth that is not produced, then the appeal will be allowed,unless the plaintiff notices the respondent and gets further timefrom this Court to do so.
Wendt, J., agreed.
SEENI MUTTU v. MEERA SAIBO