VASUDEVA MALLAN Vs. KRISHNA KAMMATH

JUDGEMENT

(1.) This Revision Petition has been filed under the following circumstances: The petitioner, who is the plaintiff in O.S. No. 187 of 1951 on the file of the Anjikaimal District Court, got an unstamped and unregistered, document produced in court by means of a summons issued to the person who had possession of the same. This document is now admitted on all hands to be a deed of settlement within the meaning of the Stamp Act. The document however does not set out the value of the

(2.) On the date the court heard arguments on M.P. No. 767 of 1952 (9.9.1952) the plaintiff had made a further application (M.P. 1378) stating that as dispute has arisen as to the proper stamp duty and penalty leviable on the document on account of the Government Pleader's contention that it was a composite deed a settlement and an agreement combined it should be sent to the Collector for adjudication. The petition also pointed out that the Collector was the proper authority to decide the matter. That such a petition had been filed was brought to the notice of the learned Judge evidently after the arguments on the earlier application were heard. The court .rejected the petition then and there remarking that at had already heard arguments on the question of stamp duty and penalty. What the plaintiff petitioner contended before us was that the lower court's, view that the document was liable to stamp duty was clearly wrong. The straight answer to it is that Chapter IV of the Stamp Act which contains the provision (S.37, Travancore Cochin Stamp Act, 1125 corresponding to S.35 of the Indian Stamp Act, 1899) authorising the court before which art unstamped document is produced to levy stamp duty and penalty before it is admitted in evidence, provides a complete procedure and that to rectify errors, if any, committed by the court the party aggrieved has to conform to that procedure for redress. S.41, 46 and 47 of the Travancore Cochin Stamp Act corresponding respectively to S.39, S.44 and S.45 of its Indian counterpart may usefully be referred to in this connection. S.41 confers power on the Collector to refund any portion of the penalty in excess of five rupees which has been paid on an instrument under S.40(1). S.47(1) authorises Government to refund any penalty levied under the preceding sections in the Chapter wholly or in part. Sub-section (2) confers powers to refund any excess duty levied. S.46 provides, that an innocent party paying duty or penalty, on an instrument may recover the same from the party through whose default the instrument was not duly stamped.

(3.) The aspect set forth above that Chapter IV of the Stamp Act provides a complete procedure has clearly been explained by Dalai, J. in a case reported in AIR 1926 Allahabad 478. A reference to S.63 (Indian Act, S.61) of the Stamp Act which expressly provides for: revision by a superior court when insufficient stamp duty and penalty are levied by a Trial Court fortifies the view that that is the correct answer to the revision petition. S.63, which occurs in Chapter VI, by implication shows that if excess stamp duty and penalty are levied or sought to be levied by a court the remedy is not by way of revision to a higher tribunal. Mulla and Praties Commentaries to S.61 of the Indian Stamp Act (5th Edition page 155) lend support to the view. The plaintiff first asked for an adjudication by the court as to the stamp duty and penalty leviable. His attitude would seem to have been that he will accept it if it suits him, but not otherwise. He may be entitled to that option, but the exercise of it has to be through the procedure prescribed by the Stamp Act itself and not by invoking the general power of revision conferred on this Court.