CHAMIYAPPA MANNADIAR Vs. DANAVAN

JUDGEMENT

(1.) Can a copy of an insufficiently stamped instrument be impounded under Section 33 of Kerala Stamp Act or the deficit stamp duty and penalty be realised Whether a provision in the instrument creating an obligation to pay money, but not a fixed sum, makes the instrument a bond as defined under Section 2(a)(i) Kerala Stamp Act These are the interesting questions to be settled in this case.

(2.) Petitioners are husband and wife. They are the plaintiffs in O.S. 156/1996 on the file of Sub Court, Palakkad. Respondent in the C.R.P. are the defendants in that suit. First respondent in the C.R.P. is the plaintiff in O.S. 284/95 and O.S. 543/1998 on the file of the same Court. Petitioner filed O.S. 156/1996 for realisation of Rs. 5.2 Lakhs due under an agreement for sale dated 3-4-1995. First respondent filed O.S. 284/1985 for realisation of the amount paid under the agreement contending that it was not actually an agreement for sale but a loan transaction. O.S. 43/1998 was filed for return of the amount on the basis of an agreement dated 5-4-1995. In O.S. 156/1996, when Ext. P1 agreement dated 3-4-1995 was sought to be marked as an exhibit, it was contended by respondents that the instrument was not properly stamped and it is not an agreement but a bond and sufficient stamp duty was not paid and being an insufficiently stamped instrument, it cannot be admitted in evidence. Learned Sub Judge, as per impugned order in C.R.P. 560/03 dated 14-2-2003 held that Ext. P1 is an agreement as well as a bond and it is chargeable with duty as provided under Section 5 of Kerala Stamp Act. The said order is challenged in C.R.P. 560/2003. In O.S. 284/95, when the very same document was sought to be marked, under Ext. P2 order passed on the same day, learned Sub Judge held that the document is both an agreement and bond and is chargeable with duty as provided under Section 5 of Kerala Stamp Act. Ext. P2 order is challenged in O.P. 6574/ 2003, filed under Article 227 of Constitution of India.

(3.) Learned Counsel appearing for petitioners and respondents were heard.