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2005 DIGILAW 392 (KER)

Angamaly Chitty Fund Pvt. Ltd. v. K. D. George

2005-06-20

J.M.JAMES

body2005
Judgment :- A short question that is placed before me in this Civil Revision Petition is who is to pay the stamp duty under the Kerala Stamp Act in respect of execution of a bond by the prized subscriber of a chit at the time of drawing of the prize money from the foreman of the chit company. 2. The brief facts are that: The decree-holder, the Angamaly Chitty Fund (Pvt.) Ltd. represented by its Managing Director, has obtained a decree against the 1st respondent, the subscriber of the chit as well as his sureties, respondents 2 to 6 herein. In the suit, the cost of stamp duty for the execution of the bond was not paid by the executants, the defendants therein. During evidence, the bond was marked as Ext.A-1, subject to payment of stamp duty and penalty. Plaintiff paid Rs.5,58. But it was not included in the cost to be realised from the defendants. Therefore, the decree-holder applied before the trial court, the Principal Sub Court, North Paravoor, through I.A.No.6020/1993 to include the stamp duty and penalty amount of Rs.5,588 paid by the plaintiff on the bond to be included in the cost list, so that the same could be realised from the defendants, at .the time of the execution. But, the learned Sub Judge, through the impugned order dated 15-10-1993, rejected the prayer. The same is sought to be revised through this revision. 3. I heard the learned counsel on either side. Section 30 of the Stamp Act, in short the Act, is dealing with the duties by whom payable. I reproduce below Section 30. 30. Duties by whom payable. - In the absence of an agreement to the contrary, the expense of providing the proper stamp shall be borne­ – (a) in the case of any instrument described in any of the following Articles of the Schedule, namely: by the person drawing, making or executing such instrument; 4. Section 43 of the Act is dealing with the persons paying duty or penalty may recover the same in certain cases: “(1) ** ** ** (2) ** ** ** (3) Such amount may, if the Court thinks fit, be included in any order as to costs in any suit or proceeding to which such persons are parties and in which such instrument has been tendered in evidence. If the Court does not include the amount in such order, no further proceedings for the recovery of the amount shall be maintainable.” 5. It is submitted relying on sub-section (3) of Section 43 of the Act, that there is a prohibition to the effect that there shall be no further proceedings for the recovery of the amount, if the court does not include the amount as to costs in any suit or proceedings. It was for that reason that the plaintiff filed I.A.No 6020/1993 for inclusion of the cost of stamp duty and penalty, so that, the plaintiff will be able to levy the same at the time of the execution. 6. In view of the above clear provision, and as there is no agreement by the respondents/defendants in the suit to show that they are not entitled to pay the stamp duty for Ext. A-1 bond executed by them, at the time of the reception of the prize money from the foreman, under Section 30 of the Act, non-inclusion of the stamp duty and penalty paid by the plaintiff have to be included in the cause list, so that, at the time of the execution, this could be levied, failing which, the provision contained under Section 43 (3) of the Act will be operative. 7. The learned Senior Counsel Sri K.C. John has placed reliance on Paramanand Jain v. Firm Babulal Jain A.I.R.1976 M.P.187. There, the plaintiff was a money lender as found by the Hon’ble Madhya Pradesh High Court. Thereafter, the question arose whether the duty and penalty paid under Section 35 of the Stamp Act, 1899 for the bond executed by the defendants for an amount of Rs.1,210 could be levied as cost, from the defendants under Section 44 of the Stamp Act. Considering sub-section (1) of Section 44 of the Stamp Act, the plaintiff was entitled to recover the duty and penalty paid by him under Section 35 from the defendants and this amount could be included as cost of the suit, as provided under sub-section (3) of Section 44. The court relied on Lokmat Motor Service v. New Lokmat A.I.R. (32) 1945 Nagpur 178 for arriving at such finding. 8. In the case at hand, as discussed above, Rs. 5,588 paid by the plaintiff had not been included. The court relied on Lokmat Motor Service v. New Lokmat A.I.R. (32) 1945 Nagpur 178 for arriving at such finding. 8. In the case at hand, as discussed above, Rs. 5,588 paid by the plaintiff had not been included. The interlocutory application filed to include the same in the cost list has only to be accepted, as there was no agreement to the contrary by the executants, the defendants and the plaintiff, the chit foreman. Therefore, rejection of the prayer of the plaintiff is against law. 9. During the hearing, the learned counsel for respondents 2 and 4, Sri Johnson P. John submitted that the principal debtor, the 1st respondent is no more. In the absence of impleading the legal heirs of the 1st respondent, this petition is not legally correct. The learned senior counsel for the revision petitioner, Sri K.C. John, replied that he would not proceed against the 1st respondent in respect of the cost of the stamp duty for an amount of Rs. 5,588 and interest thereon. 10. Counsel for the respondent further submitted that the amount of Rs.5,588 remitted by the revision petitioner before the court below was in excess as per Article 5(c) of the Schedule to the Act, and that the proper stamp duty of an agreement or a memorandum of an agreement, if not otherwise provided for, would be Rs.15 only. Counsel, therefore, emphasised that the payment of the duty and penalty by the revision petitioner under Article 50 of the Schedule to the Act, treating the document as a security bond, is incorrect. This objection ought to have been raised by the respondent before the lower court. Counsel submits that he have not had an opportunity to raise the same. I am unable to accept that contention. Even after filing this C.R.P. in the year 1993, no counter-affidavit has been filed, nor any objection raised, that the amount paid is incorrect. At this belated stage, I cannot enter into a discussion or reopen the whole matter and see whether the amount remitted by the revision petitioner before the court below, as ordered by that court, by way of stamp duty and penalty, applying Article 50 of the Schedule to the Act, is correct or not. Counsel also relied on the decisions of this Court in C.R.P.Nos.1453 of 1996, 1002 of 1993 and 1003 of 1993. Counsel also relied on the decisions of this Court in C.R.P.Nos.1453 of 1996, 1002 of 1993 and 1003 of 1993. On going through those decisions, I find that the facts are different in C.R.P.Nos.1002 and 1003 of 1993, though the provision of law applied are similar. In view of the above discussions, I am not inclined to hold that the penalty and stamp duty remitted by the revision petitioner before the court below is otherwise than under Article 50 of the Schedule and the same falls under Section 30 of the Act. 11. In view of the above discussions, I set aside the impugned order of Principal Sub Judge, North Paravoor, and direct the execution court to record the cost only against the remaining defendants, respondents 2 to 6 herein, in respect of the cost extending to Rs.5,588 and interest thereon as entitled. I.A.No.6020/93 in O.S.No.261/1991 is allowed to the above extent. This revision petition is allowed as above.