MANOHARAN Vs. VELU

JUDGEMENT

(1.) I heard Mr. C. S. Gopalakrishnan, learned counsel appearing for the revision petitioner and Mr. G. Muthukrishnan, learned counsel appearing for the respondents. According to Mr. C. S. Gopalakrishnan, the reasons assigned by the learned trial Judge in the order under challenge are wholly erroneous in law and are not supported by Indian Stamp Act (hereinafter referred to as'the act') and therefore, it has to be necessarily set aside. According to the learned counsel for the revision petitioner, though the power document was executed in Ceylon , yet it was executed on Indian non-judicial stamp paper to the value of Rs. 5. The power document in this case is a special power and therefore, it has got to be engrossed only on Indian non-judicial Stamp paper of the value of Rs. 5. When the requirement of the Act had been strictly complied with, neither Section 31 nor Section 32 of the Act will be attracted. Therefore, to rely upon Section 32 of the Act and reject the Interlocutory application would be illegal.

(2.) ON the other hand, Mr. G. Muthukrishnan, learned counsel appearing for the contesting respondents would argue that when once it is established that the power document is executed outside India, then it has to be necessarily produced before the District Collector having jurisdiction for getting necessary endorsement regarding the proper stamp duty payable on that instrument and the power of the Collector to make an endorsement on such instrument is expressly taken away under the proviso to sub-section (3) of section 32 of the Act, if it is brought to him, after the expiration of three months, after it has been first received in India. According to mr. G. Muthukrishnan, learned counsel for the respondents, whenever an instrument, like the one, is executed outside India, it is mandatory for the person, relying upon such instrument to produce it before the Collector for an endorsement.

(3.) INSTRUMENTS not duly stamped are dealt with under section 33 of the Act and it enables the Authorities before whom such improperly stamped instrument is produced to impound it. The admissibility of the instruments not duly stamped is dealt with under Section 35 of the Act. Under clause (a) to the proviso to that Section, improperly stamped instruments, excepting the categories mentioned in that clause (a), shall be admitted in evidence on payment of duty with which the same is chargeable on penalty. The document of the type on hand viz. , the power document is not the one expected under clause (a) of the proviso to Section 35 of the Act. In view of these two provisions referred to above, if the argument based on clause (b)to the proviso to sub-section (3) of Section 32 of the Act, as projected by learned counsel for the respondents is analysed, I have no hesitation to hold that the arguments advanced by the learned counsel for the respondents have got to be rejected, as otherwise no meaning could be attached to Section 35 of the act. This reason given by me now, rejecting the arguments of the learned counsel for the respondents is in addition to the reasons already given by me based on construction of Sections 31 and 32 of the Act. The unreported Judgment of this Court in CRP No. 2438 of 1993 referred to earlier is also in favour of the revision petitioner. Since in this case, the instrument produced before the court has suffered stamp duty chargeable on it, there is no question of either impounding it under Section 33 of the Act or collecting any amount, as provided for under clause (a) of the proviso to Section 35 of the Act. Therefore, I have no hesitation to hold that the order under challenge is illegal and it has to be set aside and accordingly, it is set aside.