JUDGMENT D.S. Mathur, J. - This is a petition tinder Article 226 of the Constitution by Mai Dhan Gupta and Seth Banarsi Das for the issue of a writ of mandamus to direct the Board of Revenue, respondent No. 1, to refer the case to the High Court under Section 57 of the Indian Stamp Act and also of the writ of certiorari to quash the order dated 23-9-1963 of the Board of Revenue. A request was also made for the issue of a writ of prohibition to restrain the Collector of Meerut from imposing a penalty on the petitioners. 2. The material facts of the case are that Ram Luxman Sugar Mills (to be herein. after referred as the Mill) is a partnership concern registered under the Indian Partnership Act and Petitioner No. 1 is one of its partners. It was on account of disputes and differences amongst the partners inter re and the large amount of money being due to the State of Uttar Pradesh, that the Mill was not functioning properly. To resolve their disputes and differences, the partners of the Mill appointed petitioner No. 2 as their Attorney. In the document under consideration he has been referred to as Arbitrator cum-Administrator. 3. The Government of India appointed J. P. Goel, as Authorised Controller of the Mill and under notification dated 14-7-1961 extended his period for another one year. The Government of India, however, ex-pressed its willingness to release the Mill from its control provided that a recommendation to that effect came from the State Government. 4. It was on 17-7-1961 that petitioner No. 2 leased the Mill to petitioner No. I, who was the highest bidder from amongst the 18 partners, and then moved the State Government to make the requisite recommendation. The State Government was satisfied and agreed to make a recommendation for release after the execution of the document in question. The document was executed on 6-11-1961. This was to ensure payment to the State Government dues amounting to Rs. 7,71,000/- (Rupees seven lacs seventy-one thousand only). 5. In paragraph 12 of the petition it is mentioned that the said document was drafted by the Law Department of the State Government at Lucknow and was executed on stamp-paper of Rs. 2/- under its advice. This was to ensure payment to the State Government dues amounting to Rs. 7,71,000/- (Rupees seven lacs seventy-one thousand only). 5. In paragraph 12 of the petition it is mentioned that the said document was drafted by the Law Department of the State Government at Lucknow and was executed on stamp-paper of Rs. 2/- under its advice. This was controverted, though not clearly, in paragraph 4 of the counter affidavit but in paragraph 4 of the supplementary counter affidavit it is admitted that the document was drafted by the Law Department of the State Government and at that time the officers in the Secretariat were of the opinion that on such document, if executed, a stamp duty of Rs. 2/- was payable and the Department advised the petitioner accordingly. This point is thus no more in issue. 6. During the course of inspection the Inspector of Stamps expressed the view that the said document fell within the definition of a 'bond' as contained in Section 2 (5) (b) of the Stamp Act and was chargeable with a duty of Rs. 11,565/-. Accordingly the document was impounded and was forwarded to the Collector for recovery of the deficient duty and penalty. 7. The Collector served the notice (annexure B to the petition) upon the petitioners calling upon them to show cause why the said deficiency and the penalty be not imposed and recovered from them. The petitioner No. I submitted the reply, annexure 'C', and thereafter the Collector made a reference to the Board of Revenue vide annexure 'D' to the petition. The reference was decided by the Board of Revenue under its order dated September 23, 1963, annexure 'E' to the petition. The Board of Revenue upheld the objection of the Inspector of Stamps and held that the document was a bond chargeable with a duty of Rs. 11,565/- as against Rs. 2/- paid. The present 'Writ Petition is mainly to challenge this order of the Board of Revenue. 8. It is a settled law that the recital in a document as to its nature shall not determine the stamp duty payable thereon. It is necessary to read the document as a whole and then to decide under which category it falls. Stamp duty shall be payable on the document as it is and not what it purports to be. It is a settled law that the recital in a document as to its nature shall not determine the stamp duty payable thereon. It is necessary to read the document as a whole and then to decide under which category it falls. Stamp duty shall be payable on the document as it is and not what it purports to be. For the present it may be observed that it shall be chargeable with duty as a bond if it falls within the definition of 'bond' as contained in Section 2 (5) of the Stamp Act otherwise it can be assumed to be a mere agreement and to have been properly stamped. 9. Section 2 (5). runs as below :- "Bond" includes- (a) any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be; (b) any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another; and (c) any instrument so attested, whereby a person obliges himself to deliver grain or other agricultural produce to another." The words "obliges himself to pay money" in clause (a) make it clear that the obligation in so far as the debtor and the creditor are concerned, is not a pre-existing one. 'Where the liability already exists, it cannot be said that under a subsequent document merely reproducing the nature of the obligation or the terms and conditions of the contract, a fresh obligation has been created. When no new obligation is created by the document, it cannot be said that it is under that document that the person obliges himself to pay money to the creditor. The obligation flows from the earlier contract, whether oral or in writing. Where the obligation is a pre-existing one, the subsequent document or the document executed subsequently, giving the nature of the obligation, or the terms and conditions of the contract, shall be a mere agreement not covered by the above clause. 10. It shall be found that similar words have been used in clauses (b) and (c) also. 11. Where the obligation is a pre-existing one, the subsequent document or the document executed subsequently, giving the nature of the obligation, or the terms and conditions of the contract, shall be a mere agreement not covered by the above clause. 10. It shall be found that similar words have been used in clauses (b) and (c) also. 11. Under clause (a) the obligation created becomes void on the performance or non-performance of a specified act while under clause (h) the obligation continues to exist and can be enforced, of course, within the period of limitation. With clause (c) we are not concerned in the present proceeding. 12. To put it differently, whether the obligation is a continuing one or can become void on the performance or non-performance of a specified act, does not determine the nature of the document: what is necessary is that an obligation to pay money is created under the document and it is not a pre-existing one. A similar view was expressed in Radha Swami Sat Sang Sabha v. Raj Narain, A.I.R. 1943 Alld. 218. 13. It is true that the document in question does not create any fresh liability or obligation. The only modification of importance is that prior to the execution of the document, the liability could be enforced only against the partnership concerned, that is, the Mill, and also against the partners if permissible under the law; but after the execution thereof it can be enforced against the petitioners also jointly and severally Petitioner No. I is one of the partners of the Mill, but Seth Banarsi Das is an outsider though he was appointed an Attorney and was acting for the partners of the Mill. He was acting as an Arbitrator-cum-Administrator. He was thus an agent of the partners of the Mill in the sense that any action taken by him was binding on them and, further, he could recover from the assets of the Mill any expenses incurred by him for the purposes of the Mill. Consequently, if the liability was enforceable only against the assets of the Mill or against the partners and the recovery made from Seth Banarsi Das was for and on behalf of the Mill, there shall, in such circumstances, be no personal liability imposed on Seth Banarsi Das. Consequently, if the liability was enforceable only against the assets of the Mill or against the partners and the recovery made from Seth Banarsi Das was for and on behalf of the Mill, there shall, in such circumstances, be no personal liability imposed on Seth Banarsi Das. Further, any agreement executed by Seth Benarsi Das as Arbitrator-cum-Administrator, and not placing any personal liability on himself shall be on behalf of the Mill and shall be a mere reiteration of a pre-existing liability. But where he accepts personal liability also, that shall be distinct from the earlier liability and can be enforced against the person and property of Seth Banarsi Das. 14. In the first sentence of paragraph 1 of the document in question it is made dear that the liability of both the petitioners is joint and several. This was repeated in clause (e) of paragraph 1 of the document. In paragraph 2 it is further mentioned that the First party namely, Seth Banarsi Das, shall also furnish a personal guarantee in favour of the Governor for keeping him harmless and indemnified in the event of the Second Party, namely, petitioner No. 1, or any other person in whom the management of the Mill may for the time being be vested, failing to pay all the State Government's dues amounting to Rs. 7,71,000/-. When Seth Banarsi Das had to furnish a personal guarantee also, the liability imposed upon him was not only as Arbitrator-cum-Administrator but also in his personal capacity. A fresh obligation in so far as the person and property of Seth Banarsi Das were concerned, was created. 15. Section 2 (5) of the Stamp Act refers to a obligation whereby a person 'A' obliges himself to pay money to another person 'B'. Prior to the execution of the document there was no obligation in so far as the person and property of Seth Banarsi Das were concerned. There was an obligation in favour of the same party 'B', that is, the State Government, but the obligation was merely binding on the Mill and the partners thereof. However, the obligation created under the document is between Seth Banarsi Das personally and the State Government. In view of the fresh obligation, which was not in existence be-fore the execution of the document the agreement would amount to a 'bond'. However, the obligation created under the document is between Seth Banarsi Das personally and the State Government. In view of the fresh obligation, which was not in existence be-fore the execution of the document the agreement would amount to a 'bond'. As the obligation could be enforced only when the specified act was not performed, it shall fall under clause (a) and not clause (b) . The order of the Board of Revenue can, therefore, be maintained on somewhat different grounds. 16. It is contended by the learned Advocate for the petitioners that in the above circumstances, this Court should not affirm the order of the Board of Revenue but should quash the order so that the Board of Revenue may itself consider whether the document fell within clause (a) of Section 2 (5) of the Stamp Act. It is suggested that the Board of Revenue can then, if considered necessary, make a reference to the High Court under Section 57 of the Stamp Act and such reference shall be decided by a Bench of three Judges instead of the validity of the order being considered by a Single Judge of this Court. 17. An order passed in a proceeding under Article 226 is appealable and Special Appeals are heard by two Judges. If the question is of importance, the Special Appeal can be referred to a larger Bench. The final decision of this Court, unless the party submits to the order of the Single Judge, shall not be of a Single Judge but of a larger Bench. From the practical aspect, therefore, it is immaterial whether the High Court decides the matter under Article 226 or on a reference being made under Section 57 of the Stamp Act. 18. The petitioners had made no request before the Board of Revenue for making a reference to the High Court under Section 57 of the Stamp Act and hence its order cannot be quashed simply to grant them an opportunity to now make such a request. 19. The above disposes of the first two prayers. 20. The third prayer for the issue of a writ of prohibition, to prohibit the Collector of Meerut from imposing the penalty cannot also be granted. The prayer is, in one way, premature. The Collector has the discretion to impose penalty upto ten times the deficiency. 19. The above disposes of the first two prayers. 20. The third prayer for the issue of a writ of prohibition, to prohibit the Collector of Meerut from imposing the penalty cannot also be granted. The prayer is, in one way, premature. The Collector has the discretion to impose penalty upto ten times the deficiency. The discretion has to be exercised properly after taking into consideration all the circumstances of the case. There is no reason why the Collector will not duly consider the fact that the Law Department of the State of 'Uttar Pradesh had regarded the document to be a mere agreement, and it was on its advice that the agreement was written on a stamp-paper of Rs. 2/-. It shall be for the petitioners to request the Collector to impose only a nominal penalty. 21. The Writ Petition is hereby dismissed. Costs easy. Stay order is vacated