SEREEFA KOTTUVALLY VILLAGE Vs. MOIDEEN

JUDGEMENT

(1.) Challenge in the Original Petition is against the order passed by the learned Additional District Judge, North Paravur in I. A. No. 278/2009, in the appeal numbered as A. S. No. 62/2008 pending before him against the decree and judgment passed by the learned Munsiff, North Paravur in O. S. No. 208/2003, a suit for realisation of money. The aforesaid application, I. A. No. 278/2009, was filed by the respondent in the appeal, who was the plaintiff before the court below. Suit for money was filed on the basis of an agreement executed by the defendants, who are the appellants in the above appeal. A contention was taken by the defendants that the document produced on which the suit claim was based is not an agreement, but, a bond. At the time of tendering of that document in evidence, the learned Munsiff marked that document in evidence subject to the objection canvassed by the defendants. Suit was disposed of by passing Ext. P5 judgment decreeing the suit in favour of the plaintiff but with a direction that decree shall not be drafted till deficient stamp fee and penalty is paid on the document, which was found to be a bond and not an agreement. The direction was not taken note of and a decree in terms of the judgment was drafted, from which the defendants preferred the above appeal. The respondent/plaintiff receiving notice of the appeal moved the above I. A. seeking permission to pay the deficit stamp duty and penalty. Overruling the objections raised thereto by the appellants/defendants, the learned District Judge allowed that application permitting the respondent/plaintiff to pay the deficit stamp duty and penalty. Propriety and correctness of that order (Ext. P9) is challenged in this Original Petition invoking the visitorial jurisdiction vested with this Court under Art. 227 of the Constitution of India.

(2.) In the appeal preferred by the petitioners, who are defendants in the suit, against the decree and judgment rendered on an insufficiently stamped instrument, the learned District Judge was incompetent and, in fact, has acted without jurisdiction in entertaining the application of the respondent/plaintiff and allowing him to pay deficit stamp duty and penalty on the suit document, is the submission of the learned counsel for the petitioner. Reliance is placed on "Ahmad Khan v. Munshi Faizul Haq" and "Champabaty v Bibi Jibun and another", 1879 4 ILR(Cal) 213 by the learned counsel to contend that the appellate court is incompetent to order the deficiency of stamp to be made good and where the amount of stamp duty and prescribed penalty were not tendered when the document was first tendered in evidence, in the appeal passed against the decree rendered in such suit or proceeding, no direction/order could be passed by the appellate court to pay the stamp duty with penalty on the instrument, according to the counsel. Reliance is also placed by the counsel in "Gulam Hussain v The Additional Rent Controller, Hyderabad and others", 1977 AIR(AP) 397) that, there could be no question of collecting the duty and penalty after admission of a document in evidence and the question of collecting the stamp duty and penalty after the admission is not contemplated under the Kerala Stamp Act, 1959 (for short, 'the Act'). So much so, where on the objection raised over the insufficiency of the stamp fee payment of deficit fee and penalty was ordered and without that being ordered the document was acted upon and a decree was passed on such instrument, in an appeal preferred by the aggrieved party thereto, the appellate court cannot pass any order for collecting the stamp duty and penalty on the instrument, is the submission of the counsel.

(3.) In the given facts of the case, what is to be noticed is that when a challenge was raised over the insufficiency of stamp on the instrument before admitting it in evidence at the trial stage, the learned Munsiff should have decided that question and the objection canvassed thereof court not have been relegated for consideration at a later stage. In the decision rendered by the Apex Court in "Bipin Shantilal Panchal v. State of Gujarat and Another", 2001 AIR(SC) 1158), the Apex Court, while pointing out that determining the objections raised over the admissibility of documents tendered in evidence at that stage itself, which is commented upon as an archaic practice followed, has stated such determination is not warranted in all situations and after marking the documents subject to objections it can be considered at a later stage. However, so far as a challenge raised over the insufficiency of stamp duty payable on the instrument tendered, it has been cautioned, it requires to be considered before receiving such document in evidence and proceeding further. The interdiction under S. 34 of the Act also prohibits the court from receiving in evidence and acting upon an instrument chargeable with duty unless such instrument is duly stamped. So much so, it was improper on the part of the learned Munsiff to pass an order for marking the suit document in evidence relegating the question for consideration of its objection to a later stage. The trial court had applied its mind on the objection raised over the sufficiency of stamp on the suit document only with other issues involved in the suit and that was decided under its judgment alone. However, the finding entered that the document was insufficiently stamped and stamp duty and penalty thereof to be paid as ordered under Ext. Pl judgment with direction that a decree shall not be drafted on the basis of such judgment, till deficiency is rectified with payment of penalty, which was not proper and correct, by no stretch of imagination can be held to be one passed without jurisdiction. It is only an improper exercise of jurisdiction not in accordance with the procedure applicable under the Stamp Act with respect to the admissibility of a document in sufficiently stamped. Even an insufficiently stamped instrument if admitted by the court can be acted upon and relief be granted by passing any order or decree. So much so, there was an improper exercise of jurisdiction by the court in relation to the determination of the sufficiency of the stamp and directions issued how the decree has to be drafted after passing of the judgment, cannot be canvassed by one or the other party to contend that such order or decree is unsustainable.