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2006 DIGILAW 34 (KER)

Gopakumar v. P. Easwar Pillai

2006-01-17

K.THANKAPPAN

body2006
Judgment :- The plaintiff in O.S.No. 573 of 1998 on the file of the II Additional Munsiff’s Court, Thiruvananthapuram is the revision petitioner. 2. The suit was filed for recovery of an amount of Rs.75,000/- from the defendant, respondent herein, on the basis of an agreement entered into between the parties. During the pendency of the suit, a question was raised before the court below by the defendant as to whether the document dated 30.8.1997 was a bond or only an agreement by which the time for payment of the amount as per the earlier agreement was extended. By the impugned order, the court below found that the document dated 30.8.1997 was a bond as it creates an obligation on the part of the signatory to pay off the amount. Aggrieved by the above finding, this Civil Revision is filed. 3. Heard counsel on either side. Learned counsel appearing for the revision petitioner relying on the decisions of this Court reported in State Bank of Travancore v. Thayikutty Amma, 1988 (2) K.L.T. 111 and Mathai Mathew v. Thampi, 1989 (1) K.L.T. 138 submits that to determine whether a document is a bond, it should be proved that the said document is a bond, it should be proved that the said document by itself creates an obligation to pay the amount. According to the learned counsel, the document dated 30.8.1997 only reiterates the contents of the agreement entered into between the plaintiff and the defendant to pay off the amount covered by the earlier agreement and that it would not create any new or further obligation. 4. Learned counsel, on the other hand, relying on the decision of the Apex Court reported in State of Kerala v. McDowell & Co. Ltd., 1994 (1) K.L.T. 802 submits that the document in question creates new obligation to pay off the amount and also the consequence to be faced in case of violation of the agreement. Counsel further submits that the said document is attested by witnesses and hence as per the dictum laid down in the decision of the Apex Court referred to above, the document is a bond and not a mere agreement for repayment of any amount. 5. Before considering the question raised before this Court, it is advantageous to consider the document in question extracted in the Memorandum of Civil Revision Petition which reads as follows: 6. 5. Before considering the question raised before this Court, it is advantageous to consider the document in question extracted in the Memorandum of Civil Revision Petition which reads as follows: 6. A reading of the above covenant would clearly indicate that the terms and conditions contained therein create an obligation to pay off the amount and also the consequences that would follow if the obligation is not performed. Section 2(a) of the Kerala Stamp Act, 1959 (hereinafter referred to as “the Act” defines the term “bond” as follows: “bond includes— (i) 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: (ii) any instrument attested by a witness, and not payable to order or bearer, whereby a person obliges himself to pay money to another; and (iii) any instrument so attested, whereby a person obliges himself to deliver grain or other agricultural produce to another.” The above definition itself shows that the document dated 30.8.1997 creates such obligation as mentioned in Section 2(a) of the Act. If that be so, the document in question is a bond. Even as per the judgment of the Apex Court relied on by the learned counsel for the respondent, it is the prime duty of the court to see that the document in question creates an obligation to pay off the amount. That apart, the terms and conditions contained in the document itself bring home the obligation on the part of the revision petitioner to sign the document. Hence, the contention of the learned counsel for the revision petitioner that the document dated 30.8.1997 is only a reiteration of the earlier agreement is not tenable as the document in question creates a new obligation. 7. Considering the entire facts and circumstances of the case and in the light of the legal dictum laid down in the decisions referred to above, this Court is of the view that the order under challenge does not require any interference. The document dated 30.8.1997 is a bond as defined under Section 2(a) of the Act. The Civil Revision Petition is accordingly dismissed.