C O ANTONY Vs. OUPESH ALIAS OUSEPACHAN

JUDGEMENT

(1.) Petitioner is the plaintiff and respondent the defendant in O.S.328/2004 on the file of Munsiff Court, Perumbavoor. Petitioner is challenging Ext. P5 order passed by the Munsiff whereunder out of the two documents one document was impounded under S.33 of the Stamp Act and the other document though not impounded, held to be inadmissible in evidence. The first document is an agreement executed on 20.4.2002 between petitioner and respondent whereunder second respondent paid Rs. 35000/- to first respondent and respondent in turn agreed to construct a building, which is to be completed by 30.4.2002, and agreed to grant a lease of the building in favour of petitioner on a monthly rent of Rs. 1250/-. Learned Munsiff under Ext. P5 order found that the document is a lease and therefore stamp duty should have been paid as provided under Art.33 of the Stamp Act. Finding that stamp duty paid is only fifty rupees being the value of the stamp paper in which the document is written, learned Munsiff impounded it as provided under S.33 of the Stamp Act. The second document (Ext. P4) is styled as a rent deed and executed on 27.11.2002. The document shows that subsequent to the construction of the building, as provided under Ext. P3 (the first agreement) on 1.6.2002 petitioner obtained the building on lease on a monthly rent of Rs. 1250/- and Rs. 40,000/- received earlier inclusive of the amount received under Ext. P3 is treated as security. Learned Munsiff found that Ext. P4 is not the original though it is said to be a counterpart, it is only a copy of unstamped or insufficiently stamped instrument which cannot be impounded and cannot be admitted in evidence. Petitioner was directed to pay the deficit stamp duty and penalty on Ext. P3. This petition is filed under Art.227 of the Constitution of India contending that under Ext. P3 no lease was created and therefore no excess stamp duty or penalty is payable and it cannot be impounded as provided under S.33 and it is only an agreement and as the agreement is executed in a stamp paper worth fifty rupees, which is the stamp duty payable for an agreement under Art.5(c) it' is sufficiently stamped and cannot be impounded. In respect of Ext. P4 it is contended that the document itself shows that lease was created on 1.6.2002 and Ext. P4 was executed later on 27.11.2002 and though the terms of the lease were also incorporated thereunder, it will not attract Art.33 and therefore as the document is written in a fifty rupees stamp paper it is sufficiently stamped. Learned counsel also argued that it is not a copy of the document but the counterpart executed along with the original and sufficient stamp duty was paid on the original also and Ext. P5 order is illegal and is to be quashed.

(2.) Learned counsel appearing for respondent argued that Ext. P3 is an agreement for lease and all the conditions of the lease are incorporated therein and as found by the Trial Court it is not sufficiently stamped and hence is liable to be impounded under S.33 of the Stamp Act. Learned counsel also argued that Ext. P4 was not executed and it is a concocted document. Anyway that is a fact to be decided in the suit on the evidence.

(3.) Lease is defined in the Stamp Act under clause (1) of S.2 of Kerala Stamp Act (hereinafter referred to as the Act) inclusive of a Marupattom, Kanapattom, an agreement or other undertaking in writing not being a counterpart of a lease, to cultivate, occupy, or pay or deliver rent for immovable property or an agreement or other undertaking in writing, executed by the renters of abkari and opium farms or any instrument by which tolls of any description are let or any writing on an application for a lease intended to signify that the application is granted or a patta. If it is a case of lease, stamp duty is payable as provided under Art.33. Under Art.33, lease including an under lease or sub lease and agreement to let or sublet is to be paid with the stamp duty provided therein.