(1.) THIS is a reference by the Collector, Khandwa, under Section 61 of the Stamp Act requesting this Court to revise the order of the Judge, Small Cause Court, Khandwa, levying duty and penalty upon ' an instrument filed by the non-applicant merely as an agreement even though it came under the definition of a ' bond ' as defined in Section 2 (5) (c) of the Stamp Act and a higher duty and penalty than those paid were payable in respect of it.
(2.) NOTICE was issued to the plaintiff-non-applicant to show cause why the. order should not be revised. He appeared and showed cause. His learned Counsel's contention is that the instrument in question is not a ' bond ' but is an ' agreement ' within the meaning of Article 5 of Schedule 1 of the Stamp Act, and that even as an agreement it was exempt from stamp duty, it being an agreement for sale of goods or merchandise exclusively. He relies upon the C.P. Stamp Law Rulings Circular No. 7 of 1887 printed at p. 61 of Part 1, Section 1 of the Stamp Manual in support of this contention. No appearance was made on behalf of the Government.
(3.) THE question therefore is whether the instrument under reference is a mere ' agreement' or something more than an 'agreement,' and if it is a mere ' agreement ' whether it falls within the exemptions. To bring it under the exemptions it must not only be an agreement for sale of goods or merchandise which includes grain or other agricultural produce as the C.P. Stamp Law Rulings Circulars Nos. 9, 11 and 12 of 1887 show, but must be unattested. Presumably, it is an agreement to deliver certain quantity of cotton and in the event of nondelivery to pay damages. But to be an agreement for sale of goods or merchandise, it must be in consideration of a price paid or promised; but it is not so because cotton is agreed to be delivered in return for cotton seed. It is not therefore, an agreement for sale of goods or merchandise within the meaning of the C.P. Stamp Law Rulings Circulars Nos. 7, 9, 11 and 12 of 1887. It may fairly be styled as an agreement to deliver goods in exchange for goods as held in Samaratmal Uttamchand v. Govind [1901] 25 Bom. 696 and the C.P. Stamp Law Rulings Circular No. 23 of 1902; as such it would not come within the exemptions but would have been liable to a stamp duty as an agreement ' not otherwise provided for.' But for the fact that the instrument is also attested by a witness this case would have been on all fours with the Bombay case. Being attested it falls in the category of instruments referred to in Section 2 (5) (c) of the Stamp Act and is liable to be stamped as a bond under Article 15 of Schedule 1 of the said Act.