MAULVI ANWARUL HAQ, J. - On 1.3.2001 the petitioner filed a suit for recovery of Rs. 1 million with markup against the respondent, In the plaint it was stated that the parties have cordial relations, In December, 1998 the respondent borrowed a sum of Rs. 1 million with promise that she will re-pay the same with six months; that the petitioner paid the said amount to the respondent who executed a demand Promissory Note on 21.12.1998. The recovery of the said amount was accordingly prayed for. The respondent was served in the manner prescribed and filed an application for leave to appear and defend the suit, It was stated that instrument being relied upon is not Promissory Note. She also denied execution thereof and having received any amount thereunder. On the other hand she stated that in fact her husband borrowed a sum of Rs. 3 lacs from the petitioner and negotiation for re-payment are in progress. The said application was replied to by the petitioner. Learned Trial Court heard the matter and vide order dated 7.5.2001 proceeded to hold that instrument is not Promissory Note rather a bond and sent the case to learned District Judge for entrustment to Civil Court to be tried as ordinary suit.
2. Learned counsel for the petitioner contends that the mere fact that the Promissory Note was attested by two witnesses could not have the effect of converting the same into a bond. According to the. Learned counsel both the documents i.e. Promissory Note and bond have distinct feature and a bare reading of the document would show that it is Promissory Note as defined in Section 4 of the Negotiable Instruments Act, 1881. Relies on the case of Raghunath Balakrishna Deshpande v.
Biharilal Krishnaprasad Dave (AIR 1972 Mysore 159). Learned counsel for the respondent on the other hand insists that attestation on the Promissory Note takes it out of the ambit of document defined in Section 4 of the said Act.
3. I have examined the impugned order of the learned Trial Court in the light of the contentions of the learned counsel for the parties. Copy of the document is available at page 30 of the file of civil revision, It bears date 21.12.1998 and title 'Promissory Note' it reads as follows:- "I, Dr. Jehan Ara Ahmed W/o Dr. Rashid Ahmad, resident of 23-Q, Gulberg-ll, Lahore promise to pay a sum of Rs. 1,000,000/- (Rupees one million) to Sh. Muhammad Zafar S/o Sh. Muhammad Umer, resident of 298-Karim Block, Allama Iqbal Town, Lahore on demand for value received (Sd/-)
Dr. Jehan Ara Ahmed."
It is of course attested by two witnesses.
4. Section 13(1) defines a negotiable instrument to mean a Promissory Note, bill of exchange or cheque payable either to order or bearer. Section 4 of the said Act defines a Promissory Note to be an instrument in writing (not being bank note or currency note) containing an unconditional undertaking, signed by maker, to pay certain sum of money only to or to order of certain person, or to the bearer of the instrument. Applying the said test to the document in question, the instrument is in writing and signed by the maker, it is not a bank note or currency note, it contains an unconditional promise by the respondent to pay t^ie certain amount of money, on demand and promise is to pay the said money to the petitioner. Thus the document fulfils all the conditions laid down in the said Section 4 of the Negotiable Instruments Act, 1881 defining the Promissory Note.
5. Coming to the question that document has been attested by the two witnesses and as such is bond. Although it is neither expressed in the impugned order nor has anything been said by the learned counsel for the respondent, perhaps the arguments of the learned Trial Court is based on Section 2(5)(b) of the Stamp Act, 1899. According to which bond includes any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another. A plain reading of this provision does give the impression that an obligation expressed in writing by a person to pay money to another but not payable to order or bearer if attested by a witness stands included in the definition of a bond under the said provision of law. However, arguments loses sight of the provisions of Section 13(1) read with first explanation to the said section of Negotiable Instruments Act, 1881. According to the said first explanation to the said Section 13(1); Promissory Note, bill of exchange or cheque is payable to order which is expressed to be so payable or which is expressed to be payable to a particular person and does not contain words prohibiting transfer or indicating an intention that it shall not be transferred. To my mind, effect of the said explanation qua the said instrument is that unless it is otherwise expressed by specific words that the transfer of the instrument is prohibited, it shall be deemed that it is payable to order of the persons to whom the instrument is payable that is to say in the instant case by virtue of said statutory provisions it shall be deemed that the amount under the Promissory Note is payable to the petitioner as well as to his order. If this is so then notwithstanding the attestation by witnesses, the document falls put of the pale of said Section 2(5)(b) of the Stamp Act, 1899 which would be applicable to instrument which is not payable to order.
10. Even otherwise no prohibition is spelt out in the entire Negotiable Instruments Act, 1881 on attestation of Promissory Note or any other instrument defined therein by witnesses. Thus the mere fact the Promissory Note has been attested by two witnesses would not render the instrument not negotiable. The said judgment relied upon by the learned counsel fully support his contention. No judgment to the contrary has been cited.
11. During the course of arguments the learned counsel has given his mind that he would be having no objection in case leave is granted to the respondent to defend the suit in accordance with law.
12. I find that in a round about manner the matter of liability to the extent of Rs. 3, lacs stands admitted in the petition for leave to appear and defend the suit, In the circumstances I find that the respondent is entitled to appear and to defend the suit provided she furnishes security in the suit amount to the satisfaction of the learned Trial Court.
13. For all that has been discussed above, this civil revision is allowed and the impugned order of the learned Trial Court dated 7.5.2001 is set aside, leave is also granted to the respondent subject to furnishing security in the suit amount to the satisfaction of the learned Trial Court on or before 7.11.2001 when parties shall appear before the learned Trial Court. On the same date the respondent shall file her written statement upon compliance with the said condition. The learned Trial Court shall requisite record and proceed further in the matter in the light of the observations made above. No order as to costs.