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MUTTAIYA CHETTY v. HARMANIS APPUC. R., Gampola, 3,710.Promissory note—Due cancellation, of stamp—Stamp Ordinance, 1890, s. 8—Objection taken for first lime in appeal—Objection too late—Tender ofpromissory note in evidence—Civil Procedure Code, s. 154.
A promissory note not. duly cancelled having been tendered inevidence, without objection taken, and judgment given for plaintiff,held, that it was too late in appeal to take that objection, and that theproper course was to have made that question an issue in the case.
Upon tender of the promissory note in evidence in the Court below,the procedure indicated in section 154 of the Civil Procedure Codeshould have been followed.
CTION on a promissory note payable on demand for Rs. 230,which bore a stamp of five cents. The maker wrote his
signature across the stamp, but did not put on it the date of thesigning. The figures “ 4-7-96 appeared on the face of the stamp,being evidently those of the stamp vendor. The note was dated4th August, 1896.
After evidence heard, the Commissioner entered judgment forplaintiff,
Pieria, for appellant.—The promissory note sued upon shouldnot have been received in evidence, not being “ duly stamped ” interms of section 8 of Ordinance No. 3 of 1890, which provides that“ an instrument is not to be deemed duly stamped unless the stamp“ thereon be of not less than the proper amount of duty required
“ by this Ordinance, and unless the person required by this
“ Ordinance to cancel the stamp affixed to the instrument cancels
“ the same by writing on or across the stamp his name or
“ initials together with the true date of his so writing.”
The true date does not appear on the stamp, and therefore section7 precludes the note from being pleaded or given in evidence.
Van Langenbcrg.—The objection comes too late. It ought tohave been made one of the issues in the case.
The only point pressed in the appeal is, that the promissorynote, on which the plaintiff has recovered judgment, should nothave been admitted in evidence by the Commissioner, on theground that it does not purport to be duly cancelled in accordancewith the 8th section of the Stamp Ordinance of 1890.
It seems to me that it is too late to take this point in appeal. Itis a matter of which the defendant was perfectly cognizant when
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the action was tried in the Court below, and when he was calledupon to meet the plaintiff’s case he should have asked theCommissioner to make that question an issue. I mean whether,assuming the signature to be his, the note was legally admissiblein evidence, because the stamp does not purport to have beencancelled by the defendant. Had this question been raised at theproper time by the defendant, the Commissioner would haverequired the plaintiff to have sustained the admissibility of thenote to be put in evidence by proof that the stamp, which isadmittedly not dated by the maker of the note, was affixed to thenote at the proper time.
I would point out to the Commissioner that section 154 of theCivil Procedure Code has not been strictly followed in this case. Assoon as the promissory note was put into the hands of the plaintifffor identification, and he spoke to the contents of it, the noteshould have been formally tendered in evidence and marked bythe Commissioner. As the explanation of the 154th section of theCode points out, the Commissioner would have two questions todetermine before the document was admitted in evidence: onewas, Was the signature authentic? the other was, Supposing it tobe authentic, was it legally admissible in evidence? Had theCommissioner’s attention been called to the second point, hewould have seen that it lay on the plaintiff to prove that the stampappearing on the promissory note was affixed thereon at the timethe note was signed.
The appeal fails with costs.
MUTTAIYA CHETTY v. HARMANIS APPU