Kerala High Court
Asokan vs The Deputy Collector (Rr), ... on 28 July, 1995
Equivalent citations: AIR1996KER98, AIR 1996 KERALA 98, ILR(KER) 1995 (3) KER 604, (1995) 2 KER LJ 315, (1995) 2 KER LT 292, (1996) 3 BANKLJ 174
JUDGMENT Pareed Pillay, C.J.
1. Petitioner had entered into an agreement with one Joseph on 20-12-1967 for prawn fishing operations. The period of the agreement was three months. The agreement along with other documents were produced in O.S. No. 2450/1984 of the Sub Court, Ernakulam by the second respondent (plaintiff in that suit). In that suit petitioner was not a party. The document was impounded by the Sub Judge by order dated 31-12-1985 and it was sent to the District Collector for realisation of stamp duty and penalty. The Deputy Collector (first respondent) issued notice to the executants of the agreement. He found that the document is a bond as defined under Section 2(a) of the Kerala Stamp Act. On finding that Rs. 550/- is the stamp duty recoverable deficit stamp duty of Rs. 546.50 and a penalty of Rs. 5/- was ordered to be paid under Section 39(1).
2. Contention of the petitioner is that he was not a party to O.S. No. 245 of 1984, that he did not produce the document, that the period of the bond has already expired and that he cannot be made liable for the stamp duty and penalty. He has also a contention that no action can be taken by the first respondent as it is barred by limitation.
3. Section 33 enables the Court to impound any instrument if it is found to be not duly stamped. Section 33(1) provides that every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an Officer of Police before whom any instrument chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. Section 33(2) enables every such person to examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and descriplion required by the law in force in the State when such instrument was executed or first executed. Invoking power under Section 33 the Sub-Judge impounded the instrument. Thereafter it was despatched to the District Collector for realisation of the stamp duty and penalty.
4. Section 39 deals with the Collector's power to stamp instruments impounded. Section 39(1) provides that when the Collector impounds any instrument under Section 33 or receives any instrument sent to him under Sub-section (2) of Section 37 not being an instrument chargeable with a duty of twenty paise or less, he shall certify by endorsement thereon that it is duly stamped or that it is not so chargeable as the case may be, if he finds that the instrument is duly stamped or not chargeable with duty. On the other hand, if he is of opinion that the said instrument is chargeable with duty and is not duly stamped he shall require the payment of the proper duty or the amount required to make up the same, together with a penalty of Rs. 5/ -, or if he thinks fit, an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof whether such amount exceeds or falls short of five rupees.
5. Contention of the petitioner that he was not a party in O.S. No. 245 of 1984 and so he is not liable to pay the stamp duty and penalty is not tenable. He cannot be absolved of the liability under the Act merely on the ground that he was not the person who produced the document before the Court. His liability is not extinguished for the reason that he did not have occasion to present it before any authority. If an instrument is not duly stamped the executant cannot be heard to contend that it was not produced by him before any authority and so he is not liable under the Act when it is produced by a third party before the Court. Whenever the infraction of the Act is detected primary liability of the executant of the instrument cannot be shelved for the reason that he never produced it before the Court. Court's power to impound an instrument cannot be denied on the ground that the parties to the instrument are not before the Court. From a reading of Section 33(1) it can be discerned that whenever an insufficiently stamped instrument comes to the notice of the Court it can impound the same. Thus the executants of an instrument cannot take up the stand that they have not produced the instrument before the Court and so the Court cannot impound it.
6. His next contention that the period of the agreement has expired and so he is not liable to pay any stamp duty and penalty cannot hold good as the Act does not say that there cannot be any impounding if the period of the bond or agreement has expired. Section 33 makes the position clear that whenever a document is produced before the Court and when it appears to the Court that such an instrument is not duly stamped it can be impounded. There is no force in the contention of the petitioner that a document which has been found to be insufficiently stamped when produced before Court cannot be impounded when its period has already expired. So long as the Act does not envisage such a position petitioner cannot advance such a contention.
7. There is no provision under the Act which prevents the District Collector from impounding an instrument under Section 39(1) on the ground that the period mentioned in it has expired. As there is no period of limitation under the Act regarding Collector's power of impounding an instrument contention of the petitioner that action taken by the Collector is barred by limitation is not tenable.
8. The document was admittedly executed before the Bank and furnished by the executants as collateral security for the loan. The limitation is only for the purpose of filing suits and that cannot absolve the petitioner of his liability under the Stamp Act. It has been held by the Special Bench of the Madhya Pradesh High Court in State v. Jiwan Mathur Prasad, AIR 1983 Madh Pra 122, to the effect that even if the document is no longer required for any purpose or in any proceedings the action taken under Section 33 coupled with Section 38(2) cannot be dropped. The Special Bench held as follows :
"Once the document has been impounded under Section 33(1) and a report under Section 38(2) is submitted to the Collector of Stamps, the Collector of Stamps is only expected to proceed in accordance with further provisions of Chapter IV of the Act.
Further, the documenf when produced before the Municipal Committee was inadequately stamped and therefore, it had resulted in a loss of revenue; may be that it was detected or noticed by a competent authority under Section 33(1) at a later stage. And in fact, the relevant date will be the date when the inadequately stamped document was presented in the office of the Municipal Committee and the Administrator accepted the document. There is nothing in the provisions contained in the Stamp Act to indicate that even if the document is such which is no longer required for any purpose or in any proceedings the action taken under Section 33 coupled with Section 38(2) can be dropped."
9. The first respondent was justified in passing Ext.P2 order. We see no reason to interfere. The original petition is dismissed.