Thoma Thomas vs Parameswaran Nair

Radhakrishna Menon, J.—The Plaintiff is the revision Petitioner.

The order under challenge is one by which the court below has found that the document, based on which the suit is instituted, is a bond and not an agreement and hence the Plaintiff is liable to pay stamp duty under Article 13 of The Kerala Stamp Act. However, only a sum of Rs. 3 has been paid as stamp duty treating the document as an agreement. The court below therefore has held as follows:

Since the instrument is a bond, Plaintiff has to pay stamp duty as per Article 1 of the Kerala Stamp Act. For Rs. 10,000 he has to pay Rs. 250 as stamp duty. Already he has paid . Rs. 3. Then he needs to pay only Rs. 247 as deficit stamp duty. As per Section 34(a) of Kerala Stamp Act, he has to pay its 10 times penalty. Hence he has to pay Rs. 2,470 as penalty. Totally he has to pay Rs. 2,717 as deficit stamp duty and penalty. Hence the document is impounded as per Section 33 of the Kerala Stamp Act, and the Plaintiff is directed to pay deficit stamp duty of Rs. 247 and penalty of Rs. 2,470 to this office. For deposit to 1st March 1988.

I shall now consider the ambit of Section 33 of The Kerala Stamp Act. Sub-section (1) thereof is relevant in the context. It provides that every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an Officer of Police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. The words in this section that require special mention are "is produced or comes in the performance of his functions". The insufficiently stamped document in order to be impounded u/s 33, therefore must be one which had been produced or had'' come in the performance of the functions of the persons or authorities mentioned in the Sub-section. The phrase "in the performance of his functions" in the context is meaningful. The document, in order to find that it has been produced or has come in the performance of the functions of the authority concerned, in my judgment, must be one, the party concerned has taken steps to tender in evidence. A mere production of the document cannot therefore be said to be a production within the meaning of that phrase, because, the party who has produced the document, has every right to take the same back before steps to tender it formally in evidence are taken. It is relevant in this context to refer to Section 34 of The Stamp Act also. This section says that no" instrument chargeable with duty, shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped. This section thus prohibits admission in evidence of instruments chargeable with duty unless they are duly stamped. Similarly they cannot be acted upon or registered or authenticated unless, again, such instruments are duly stamped.

The cumulative effect of these sections is that the question as to whether or not an instrument chargeable with duty, has however, been insufficiently stamped, in so far as court proceedings or proceedings akin thereto are concerned, comes up for consideration, only when the party concerned takes steps to tender the said document in evidence. The court has then and only then the power to consider whether the document has been duly stamped. To put it differently, mere production of the document in contradistinction to tender the document in evidence, is not sufficient to impound the document chargeable with duty, however insufficiently stamped. Investigation to decide the issue whether the document is liable to be impounded u/s 33 thus cannot be had until it is tendered in evidence although the document had in the meantime been produced before the authority concerned. The Lahore High Court in the decisions in AIR 1936 985 (Lahore) and Harjimal and Sons v. H.S. Palta and Sons AIR 1947 Lah 319 has expressed the same view.

It is in this background, the case on hand requires to be considered. It is clear from the findings discernible from the order under attack that the concerned party has not so far taken any step to tender the document formally in evidence, although the concerned party had produced the same alongwith the plaint. That means, the order impounding the document at this stage is not sustainable in law. The order accordingly in set aside.

It is made clear that the question whether or not the document is liable to be impounded u/s 33 accordingly is left open.

The C.R.P. accordingly is allowed. No costs.