1. ' Appellant has impugned the order passed by Single Judge, over the objection raised by the office about the maintainability of Suit No,Nil of 2008, whereby office Objection No, 1 was upheld that the suit was not covered under the law of Negotiable Instruments Act hence does not fall under the summary chapter.
2. ' Learned counsel for the appellant has persistently invited our attention to a document dated 20- 2-2006, connoting that it is a Promissory Note, the basis of the suit under Summary Chapter. It is urged that the ingredients of section 4 of the Negotiable Instruments Act stands fulfilled from he document relied upon, therefore, office objection been wrongly upheld, and the office has been directed to register the suit as long cause suit.
3. ' We have considered the arguments advanced at bar.
4. ' In order to appreciate the contention raised about the maintainability of suit under Summary Chapter on the basis of the document produced by the appellant. Section 4 of the Negotiable Instruments Act is reproduced hereinbelow for the sake of convenience:-- "4. 'Promissory Note'.---A 'Promissory note' is an instrument in writing (not being a bank-note or a currency note) containing an unconditional undertaking, signed by the maker, to pay [on demand or at a fixed or determinable future time] a certain sum of money only to, or to the order of, a certain person or the bearer of the instrument."
5. ' It is imperative that four ingredients are essential for adjudging the document as a Promissory Note:--
(i) an unconditional undertaking to pay:
(ii) the sum should be a sum of money and should be certain;
(iii) the payment should be to or to the order of a person who is certain, or to the bearer of the instrument;
(iv) and the maker should sign it, if these four conditions are present, a document becomes a promissory note.
6. ' The question whether an instrument is a promissory note or not should be judged by the word used, which depends upon the circumstances and wording in each case. As to whether a document is a promissory note or an agreement, one of the tests to be applied to find this out, is the intention of the parties. The second is whether the document as drawn out can be said to be negotiable, that is to say, could a third person file a suit on the strength of the document. If he cannot, then it is a mere agreement. In the instant case the alleged promissory note A amount of payment is not specified, therefore, acknowledgement of liability is not a promissory note. The central point in a promissory note is that it is an instrument containing and undertaking to pay money to another. This view finds support from the dictum laid down in PLD 1965 SC 634, AIR 1926 NAGPUR 194.
7. ' A promissory note must state a certain sum of money as payable under it, and any instrument which does not state a definite sum is not a promissory note. This view find support from (AIR 1925 OUDH 560) (AIR 1951 AJMAIR.
8. ' Analyzing Section 4 of the Negotiable Instruments Act XXVI of 1881, in AIR 1957. Rajasthan page 360, the following observation has been made in paras-9, 10 and 11 of the judgment authored by Judge Dave which reads as follows:-- "We cannot read the document in different parts. In other words, we cannot say that so much part is a receipt and so much is something else. But we cannot read only this part and ignore the remaining one. The document has to be read as a whole and when so read, there is no doubt that it comes within the definition of a promissory note.
9. "A promissory note is an instrument in writing (not being a bank note or a currency note) containing an unconditional undertaking, signed by the maker, to such rule, however, did not say that suit should be on that pro note which was valid according to law or which had been executed according to law or which has admissible in evidence according to law.
10. ' Contends that sufficient evidence was available on record to prove the case of the appellant even if the said pro note was altogether excluded from the evidence.
11. ' All suits upon bills of exchange, hundies or promissory notes, may, in case the plaintiff desires to proceed hereunder, be instituted by presenting a plaint in the form prescribed; but the summons shall be in form No, 4 in Appendix "B" or in such other form as may be from time to time prescribed."
12. ' Its first three words 'all suits upon' are very important. The said word means that a suit based on a pro note can be filed under Order XXXVII, C.P.C. And can be dealt with thereunder. However, the said rule does not say that it should be a pro note which is valid according to law or which has been executed according to law or which is admissible in evidence according to law. Similarly it does not say that the suit cannot proceed on any other evidence apart from the concerned pro note. This would mean that a suit on the basis of a pro note can be filed under the said order and can be tried under the provisions thereof irrespective of the fact whether the pro note is admissible in evidence or not.
13. ' A perusal of the evidence will show that there was sufficient evidence on record, apart from the pro note to prove the case of the appellant. The issue, as a consequence, is decided in favour of the appellant. The suit as a result has to be decreed."
14. ' Learned counsel for the appellant has contended that certainty of amount comprising of 40% comes to Rs,130,595,424 equal to Rs,52,238,190. On the basis of the statement Annexure-B referred to in the instrument, create pales, the appellant's suit out of the suits triable under Order XXXVII of the Code of Civil Procedure, 1908. In case of ambiguity under section 17 of the Negotiable Instruments Act, 1881, an instrument may be construed either as a Promissory Note or bill of exchange, and the holder may at his. Discretion treat it as either, and the instrument shall be thence forth treated accordingly.
15. ' Under section 118 of the Negotiable Instruments Act, 1881, a presumption flows in favour of the instrument of the appellant. The consideration of promissory note according to learned counsel for the appellant is the independent business of the appellant at the time of its merger with Gondel Textile through declaration of gift. The appellant's business was established in 1992 and was run successfully till it merged with respondent No,
2. The appellant as otherwise is entitled to 40% of the business of Gondal Textile for running and promoting the same through his hard working for many long yeaRs, It is urged that promissory note has not been cancelled till this date nor rebutted through any letter.
16. ' We are of the view that the impugned order requires interference at this stage, the appellant's suit should be treated as long cause suit and shall be proceeded under the Code of Civil Procedure as in the ordinary jurisdiction as vested under section 9 of Civil Procedure Code.
17. ' With above observations High Court Appeal is hereby dismissed in limine along with listed applications.