AVAULA SURENDRA BABU Vs. MOVVA BHIKSHAVATHI

JUDGEMENT

(1.) THE petitioner filed O.S.No.197 of 2009 in the Court of XI Additional District Judge (Fast Track Court), Guntur at Tenali, against the respondents for recovery of amount on the strength of an agreement dated 10 -04 -2007. The respondents entered appearance and filed a written -statement. Later on, they filed I.A.No.152 of 2011, under Section 151 of C.P.C., with a prayer to collect stamp duty and penalty on the document. According to them, though the document is styled as agreement, it is a bond, as defined under Section 2(5) of the Indian Stamp Act (for short the Act), and the document cannot be received in evidence, unless stamp duty and penalty is collected. The application was opposed by the petitioner. He pleaded that though the respondents committed themselves to repay the amount covered by the agreement, no conditions, rendering the obligation as void are provided. According to him, the document answers the description of agreement, and it does not fall within the definition of bond. Through its order dated 23 -03 -2011, the trial Court allowed the I.A. Hence this revision. Heard Sri T. Sharath, learned counsel for the petitioner.

(2.) THE basis for the suit claim is a document dated 10 -04 -2007, said to have been executed by the respondents. Even while denying the execution thereof, the respondents took the plea that the document answers the description of a bond, and insisted that stamp duty and penalty must be collected thereon. The trial Court took the view that the document falls into clause (b) of Section 2(5) of the Act, and accordingly treated it as a bond. Directions were issued to get the document impounded by sending it to the Collector/District Registrar.

(3.) THE petitioner filed a copy of the agreement, in the revision. A perusal of the same discloses that it does not fall in clause (a) of Section 2(5) of the Act, since it did not incorporate a condition to the effect that the obligation thereunder shall be void, if a specific act is performed or is not performed. To attract clause (b), two conditions are necessary: The first is that the instrument must be attested by a witness, the second is that it should not incorporate a condition, providing for payment of the amount to order or bearer. Though the word attested is used in Section 2(5)(b) of the Act, it does not appear to be the one, defined under Section 3 of the Transfer of Property Act (for short the T.P. Act). The reason is that attestation, as and where it is required, must be, by at least two witnesses, and in the form mentioned in Section 3 of the T.P. Act. Section 2(5)(b) of the Act refers to only one witness. The word appears to have been used, signifying the signature by a witness, and not beyond that.