1. ' This first appeal on behalf of the appellants/plaintiffs arises out of suit for recovery of Rs, 12,508.97 under Order XXXVII of the Code of Civil Procedure.
2. ' The facts leading to the filing of the above suit are that the plaintiffs/appellants filed the above suit for recovery of Rs,12,508.97 against the defendants/respondents. The respondents applied for leave to defend the suit and the trial Court granted conditional leave to defend the suit. The defendants/respondents furnished the security. The respondents/defendants resisted the suit on various grounds. On the pleadings of the parties, the trial Court framed the following issues:- "(1) Whether the suit is not maintainable?
(2) Whether the suit is time-barred?
(3) Whether the promissory note is insufficiently stamped, if yes, its effect?
(4) Whether the interest levied by the plaintiff is excessive and the defendant is neither liable to pay the principal amount nor the interest claimed by the plaintiffs?
(5) What should the decree be?
3. ' The appellants examined their Officer PW No,1 Shafaatullah in support of their case. The appellants produced promissory note as Ext. 13, letter of arrangement (Ext.4) and letter of continuity (Ext.5) and hypothecation deed (Ext.6) and statement of account (Ext.7). The appellant also produced the correspondence namely letter (Ext.8), A/D as Ext. 9 and Ext.
15. The appellant produced letter of acknowledgement duly signed by the respondents Ext. 10 (A to F).
4. ' The respondents did not examine any witness in support of their version.
5. ' The trial Court, on appreciation of the evidence on record, came to the conclusion that the suit was barred by time. He came to the conclusion that the promissory note is inadmissible in evidence. In that view of the matter, he held that the suit is based on the insufficiently stamped promissory note and was liable to be dismissed. In view of these findings, he dismissed the suit.
6. Hence this first appeal on behalf of the plaintiffs.
7. ' Mr. Faseehuddin, learned counsel for the appellants raised the following contentions:
(1) The suit was within time.
(2) The promissory note was duly stamped and admissible in evidence.
8. ' On the other hand Mr. Mohammad Zaki Ahmed, learned counsel for the respondents submitted that the suit was barred by time. The promissory note was inadmissible in evidence and the appellants are not entitled to any interest pendente lite.
9. ' I have heard the learned counsel for the parties and have perused the impugned judgment. I have also gone through the R & P of the case.
10. ' Reverting to the first contention that the suit was within time. The promissory note (Ext. 3) was executed on 14-10-1974. It has come on record that the plaint was presented on 27-1-1979. The appellant averred in para 7 of the plaint as follows:- "7. That the plaintiff wrote letters on 19-12-1975, 30-1-1976, 11-5-1976 and 17-11-1977 in replies he acknowledges his liabilities vide letters dated 26-12-1975, 25-3-1976 and 14-54976 and requested the plaintiff to grant the instalment of the due amount. The request of the defendant acceded to and the last instalment was paid by the defendant on 30-9-1976. Now the account of the defendant shows a debit balance of Rs,12,508.97 on 30-94978. Certified copy of the defendant's statement of account is also filed herewith for ready reference and is marked `D'."
11. ' The respondents by their letter dated 26-12-1975 (Ext. 8) acknowledged the outstanding amount in the following terms:- "Your letter No, YHK-5753 dated 19-12-1975 received on 24-12-1975 regarding my outstanding of Rs,12,776 at our Tariq Road Branch. In this connection I would request you to kindly allow me three months time to adjust the outstanding. As such I will adjust the entire liability by 31st March 1976. In the meantime, I will sign my life insurance policy, as a security."
12. ' The appellants by their letter dated 19-12-1975 asked the respondents to adjust the sum of Rs,12,776. Thereafter sent the final notice (Ext.9/3) calling upon the respondents to adjust the outstanding amount. The respondents by their letter dated 25-3-1976 (Ext. 9/6) undertook to pay the amount in instalments of Rs,500 per month. Again the respondents by their letter dated 14-5- 1976 (Ext. 9/7) wrote the following:- "Your letter No, IBM-1711/452-N received on 13th May 76 you allow me three days time for 50% payment is very short. I request to you please allow 30 days for 50% payment, first monthly instalment of Rs,1,000 I will pay end of this month and after ' I will pay regularly month by month, again I request you please allow 30 days time for 50% payment."
13. The respondents acknowledged the outstanding amount and undertook to pay the amount in instalments. In this view of the matter, the suit was filed within time. Mr. Mohammad Zaki Ahmed has fairly conceded that the suit was within time. The finding of the trial Court on this point is set aside.
14. ' Reverting to the second contention of Mr. Faseehuddin Ahmed that the promissory note was duly stamped and admissible in evidence. The respondents pleaded in their written statement that the promissory note is prima facie not duly stamped. As such the same is not valid. Promissory note was executed on 14-10- 1974. It was produced as Ext.
15. 3.It bears special adhesive stamp. In order to appreciate the contention of the learned counsel for the parties, it is advantageous to reproduce section 11 of the Stamp Act and Rule 17 of the Pakistan Stamp Rules, 1925, which read as under:- "11. Use of adhesive stamps..The following may be stamped with adhesive stamps, namely:-
(a) instruments chargeable with a duty not exceeding twenty-five paisas except parts of bills of exchange payable otherwise than on demand and drawn in sets;
(b) bills of exchange, and promissory notes drawn or made out of Pakistan;
(c) entry as an advocate, vakil or attorney on the roll of a High Court;
(d) notarial acts; and
(e) transfers by endorsement of shares in any incorporated company or other body corporate."
16. "17. Special adhesive stamps to be used in certain .Cases.---The following instruments when stamped with adhesive stamps shall be stamped with the following descriptions of such stamps, namely:
(a) Bills-of-exchange, cheques and promissory notes drawn or made out of Pakistan and chargeable with a duty of more than one anna; with stamps bearing the words 'Foreign Bill'.
17. (b)
18. (c)
19. (d)
20. (e)
(f) ......
(g) ........ "
21. ' Mr. Faseehuddin Ahmed contended that it would suffice the provisions of the Stamp Act and the Rules framed thereunder if the proper stamp duty is paid and the mode adopted in the present case viz. Affixing special adhesive stamp in the promissory note will not make the document an improperly stamped or not duly stamped one, so as to make it inadmissible for consideration in Courts.
22. I find there is force in the contention put forth by the learned counsel for the appellants. Section 10
(1) of the Stamp Act lays down:-- "(1) Except as otherwise expressly provided in this Act, all duties with which any instruments are chargeable shall be paid, and such payment shall be indicated on such instruments, by means of stamps:--
(a) according to the provisions herein contained; or
(b) when no such provision is applicable thereto--as the Provincial Government may by rule direct."
23. Section 11 of the Stamp Act lays down that the instruments set out under Clauses (a) to (e) thereunder may be stamped with adhesive stamps. Clause (b) of section 11 refers to bills-of- exchange and promissory notes drawn or made out B of Pakistan. Obviously this clause would not apply to the case in question as the promissory note was executed in Pakistan. Coming to the rules framed under the Act, I reproduce Rule 5 which reads as follows:-
5. Promissory notes and bill-of-exchange.---A promissory note or bill-of-exchange shall, except as provided by section 11 or by rules 13 and 17, be written on paper on which a stamp of the proper value, with or without the word "hundi", has been engraved or embossed."
24. It will be relevant to refer to Rule 13 also because Rule 5 referred to above, states that a promissory note or bill-of-exchange shall except as provided c by section 11 or by rules 13 and 17 be written on paper on which a stamp of the proper value has been engraved or embossed. Rule 13 reads as follows:-- "13. Use of adhesive stamps on certain instruments.---The following instruments may be stamped with adhesive stamps, namely:-
(a) Bills of exchange payable otherwise than on demand and drawn in sets, when the amount of duty does not exceed one anna for each part of the set.
(b) Transfers of debentures of public companies and associations.
(c) Copies of maps or plans, printed copies, copies of or extracts from registers given on printed form and copies of records of the Courts and offices under the control of the High Court of Judicature at Lahore other than the records of judicial proceedings when chargeable with duty under Article 24 of Schedule I-A.
(d) Instruments chargeable with duty under Articles 5 (a) and (b) and 43 of Schedule I.
(e) Instruments chargeable with stamp-duty under Article 47 of Schedule I.
(f) Instruments chargeable with stamp-duty under Articles 19, 36, 37, 49 (a) (ii) and (iii) and 52 of Schedule I."
25. The expression used in Rule 13 of the Rules is 'may'. The rule is merely a permissive one, permitting the use of adhesive stamp on promissory notes payable on demand when the amount in any other case is rupees ten. The rule does not lay down that such promissory note shall be stamped with adhesive stamp of the requisite value. The result is that a promissory note in any other case can be written on a paper having an impressed stamp or it can be stamped with special adhesive stamps of the requisite value. In my view a promissory note can be stamped either with special adhesive stamps or adhesive stamps or engraved on a stamp paper of proper value. In this view, I find that the trial Court is not correct in holding the document as not duly stamped and inadmissible and dismissing the suit. The finding on this issue is set aside.
26. ' In the light of the aforesaid discussion, it is difficult for me to accept the contention of Mr. Mohammad Zaki Ahmed that the promissory note was not admissible and the suit was barred by time.
27. ' The appeal of the plaintiffs is therefore allowed. The suit shall stand decreed with costs. It has come on record that a sum of Rs,13,650 was appropriated by the appellants Bank and the outstanding amount is Rs,20,024 on 31-3-1990. The appellant Bank is entitled to recover Rs,20,024 with interest thereon as per clause (a) of Section 34-B of the Code of Civil Procedure.