Kerala High Court
Uthuppan Abraham vs State Of Kerala And Ors. on 10 June, 1997
Equivalent citations: AIR1997KER345, AIR 1997 KERALA 345, (1997) ILR(KER) 3 KER 735, (1997) 2 KER LJ 61, (1997) 2 KER LT 475, (1997) 4 RECCIVR 335, (1999) 1 BANKCAS 44, (2000) 3 BANKCLR 326
ORDER C.S. Rajan, J.
1. The petitioner was the fourth defendant in O.S. No. 379 of 1980 on the file of the Munsiffs Court, Changanachery. The suit was one for realisation of a loan amount from defendants I to 3. The petitioner was an assignee of the ice plant which belonged to the first defendant in the suit. Evidencing the above assignment the petitioner produced a document styling itself as an assignment deed. The above instrument was executed on a stamp of Rs. 3/-. The above document, though produced by the petitioner, was not either tendered in evidence or marked as exhibit. The petitioner was also not examined. The suit was finally decreed against defendants 1 to 3 and dismissed against the petitioner, The learned Munsiff passed an order stating that a stamp duty of Rs. 1,787/- was payable along with penalty of Rs. 17,870/-. The third respondent was directed to realise the above amount. When the third respondent took action pursuance to the order of Munsiff s Court, the petitioner filed a revision petition before the first respondent. The first respondent forwarded the revision petition before the second respondent and the second respondent in turn referred the matter to the third respondent for decision.
2. The third respondent by Exhibit P-1 order directed the petitioner to pay Rs. 1,787/- as Stamp duty and Rs. 5,361/- as penalty. The petitioner filed a revision before the second respondent which was dismissed by Exhibit P-2 order. Aggrieved by Exhibits P-1 and P-2 the petitioner filed revision before the first respondent which was also dismissed by Exhibit P -4.
3. Shri. N. Govindan Nair, learned counsel for the petitioner urged that the action of the learned Munsiff in directing to levy stamp duty and penalty is without any jurisdiciton. Unless the document in question was tendered in evidence by way of marking as an exhibit the Court cannot levy any penalty for insufficiency of stamp duty. In this connection it is worthwhile to note various provisions contained in the Kerala Stamp Act with regard to the impounding of document and imposition of penalty. According to Section 33 of the Kerala Stamp Act, every person who has authority to receive evidence under law before whom any instrument is produced shall impound the same if it appears to him that such instrument is not duly stamped. According to Section 34, no instrument chargeable with duty shall be admitted in evidence unles such instrument is duly stamped. Section 35 states that where an instrument has been admitted in evidence, such admission shall not be questioned at any stage of any suit or proceeding on the ground that the instrument has not been duly stamped. Under Section 37, the person impounding an instrument under Section 33 shall send to the Collector an authenticated copy of the instrument with a certificate stating the amount of duty and penalty levied in respect of the instrument.
4. The learned counsel relied on a decision of this court reported in Chanda Pillai v. Munsiff, Tiruvalla, 1975 Ker LT 753 to contend that as long as an instrument is not admitted in evidence. the Munsiffs Court has no jursidiction to levy any penalty or charge any duty on the same. In the above case the petitioner therein who was the plaintiff in the civil suit relied on an assignment deed which was insufficiently stamped. The document was not marked in evidence. But the learned Munsiff impounded the document and made a requisition to the District Collector to recover the amount of stamp duty an penalty. Dealing with the above contention Justice Chandrasekhara Mehon held as follows :
"As long as an instrument is not admitted in evidence, the Munsiff though he may have impounded the same has no jurisdiction to levy any penalty or charge any duty on the same. The question whether the Munsiff should not under Sub-section (2) of Section 37 by which every person impounding an instrument has to send it in original to the Collector, depends upon the answer to the question whether the case is one which can come within the description of every other case mentioned therein. Every other case means every case other than the case mentioned in Sub-section (1) of Section 37. Among cases mentioned therein is the case of a person impounding an instrument under Section 33 who has by law authority to receive evidence and admits such instrument in evidence upon payment of penalty as provided by the proviso to Section 34. It is only when the case is different from the one mentioned therein that an occasion will arise for a Civil Court to act under sub-section 2. Ordinarily, the duty or power of assessing the amount of stamp duty or collecting stamp duty and penalties is invested by the Act in the Collector. The proviso to Section 34 invests courts with the special jurisdiction of adjudicating upon stamp duly and imposing penalty in certain cases and those are cases where a party to a litigation before the court tenders a document in evidence. In the instant case, as the documents have not been admitted in evidence no question of imposition of stamp duty by the Munsiff arises. He could have acted only under Section 37(2) by which he is to send the documents to the Collector who then can proceed to stamp the instruments concerned and collect the required duty and penalty if any from the person or persons who are liable to pay the same."
5. The counter affidavit takes the stand that as per Section 33(1) of the Kerala Stamp Act, the Munsiff is competent to impound a document that is insufficiently stamped and forward the same for adjudication. I do not think that the Munsiff has/rely jurisdiction to impound any document which comes into his possession. Only the document which is cither relied on by the parties for proving the case or admitted in evidence by marking as exhibit is liable to be impounded by the Court. Merely because a document was filed in Court (and when the same was not either proved in evidence or acted upon by any of the parties) the Munsiff cannot order impounding the document or imposing any penalty for insufficiency of the stamp duty. The principle seems to be that a party to the litigation cannot escape the liability of payment of the stamp duty under the law whenever he wants to rely on the document in order to prove his case. Therefore, according to me, the respondents as well as the Munsiff were wrong in impounding the document and directing recovery of the stamp duty and penalty from the petitioner. Therefore, I quash Exhibits P-1, P-2 and P-4. The Original Petition is allowed.