JUDGMENT Sulaiman, J.
1. The plaintiff in this case sued for recovery of money due or accounts. The sum due from the defendants to the plaintiff was the sum of Rs. 2,341. That this sum was due am owing by the defendant to the plaintiff is not disputed. But the defendant relied upon the statute of limitation and alleged that the last debited entry in the account was dated 22nd February 1923 and the account was settled on 27th of the same month, and that therefore time began to run from the latter date. The suit was brought on 18th January 1927, so limitation would have expired except for an unconditional acknowledgment by the defendant intervening. The plaintiff alleged that there was such an acknowledgment which was dated 25th June 1924, and if the plaintiff's contention on this point is correct, the suit of course would be within time. The learned Judge in the Court below has come to the conclusion that this is an acknowledgment which saves limitation. He has repelled the contention of the defendant that the document relied on was in reality a promissory note, that it was not stamped properly and therefore was inadmissible in evidence.
2. It has been contended by the appellant here that the proper construction of the document would make it a promissory note and that therefore it cannot be relied upon by the plaintiff as an acknowledgment, as it is not. properly stamped There are several difficulties in the way of the appellant. The document has, in fact, been admitted in the lower appellate Court, and therefore Section 36, Stamp Act applies, which reads as follows:
Where an instrument has been admitted in evidence, such an admission shall not, except as provided in Section 61, be called in question at any stage in the same suit or proceeding on the ground that the instrument has not been properly stamped.
3. There can be no, doubt therefore that the appellant's argument on this point is without force. The wording of the section is perfectly clear and is not open to any doubt.
4. The point discussed above would, of course, only apply if the construction put upon the document relied upon as an acknowledgement made it a promissory note in fact. The definition of a promissory, note is set out in Section 4, Negotiable Instruments Act. A promissory note is there defined as an instrument in writing, not being a bank note or a currency note, containing an unconditional undertaking signed by the maker to pay a certain sum of money to or to the order of a certain person, or to the bearer of the instrument.
5. The actual document in this case reads as follows:
On 25th June 1924, Rs. 2,341 were found due from me to Parbhu Dayal about bahikhatta dated 27th February 1923, and as the money cannot be given at present, hence it has been agreed upon that I would pay interest at 1 per cent per mensem. Therefore this pro-note, payable on demand, (ruqqu indal talab) has been executed, so that it may serve as evidence and may be useful in time.
6. It is argued on behalf of the appellant that the use of the words "this (promissory) note (payable) on demand" makes this document a promissory note. The mere fact that any person chooses to give a certain title to a document by no means makes it that document. For instance, a person might well describe a document as a sale deed in the body of the document, when in fact it was a mortgage. We have therefore got to look at the whole document to see whether it is a promissory note or not within the meaning of Section 2, Stamp Act read with Section 4, Negotiable Instruments Act. It is clear when we read the document in question that there is no unconditional undertaking to pay a certain sum of money" to be found in the four corners of !the document. The document recites the fact that Rs. 2,341 are due from the (defendant to the plaintiff, and thereafter 'records the fact that as the defendant was at that time unable to pay the money, he agreed to pay the interest specified in the document. It is perfectly clear, in jour view, that this merely amounts to an {acknowledgement of debt, coupled with an agreement to pay interest. It therefore is not a promissory note within the meaning of the statutes referred to. There is no reason therefore why it should not be admitted in evidence, and once it is admitted in evidence, it is a clear unconditional acknowledgement of a debt due by the defendant to the plaintiff. The appeal therefore must be dismissed with costs, including fees in this Court on the higher scale.