THARA THOMAS Vs. NARAYANAN NAIR

JUDGEMENT

(1.) The plaintiff is the revision petitioner.

(2.) 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 Art.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:-

(3.) I shall now consider the ambit of S.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 under S.33, therefore must be one which had been produced or had come in the performance of the function 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 judgement, must be one, the party concerned has taken steps to tender in evidence. A more 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 S.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.