IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 7196 of 2005(F)
1. UMESH RAO, AGED 64 YEARS,
... Petitioner
Vs
1. NAFEESA, AGED 50 YEARS.
... Respondent
2. MUNEERA, AGED 23 YEARS.
3. NASEEMA, AGED 21 YEARS,
For Petitioner :SRI.KODOTH SREEDHARAN
For Respondent :SRI.T.K.VIPINDAS
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :20/06/2007
O R D E R
PIUS C. KURIAKOSE, J.
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W.P.(C) No. 7196 OF 2005
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Dated this the 3rd day of July, 2007
JUDGMENT
The plaintiff who is aggrieved by the construction of Ext.P1
document by the court below as a bond and not as an agreement has
filed this Writ Petition under Article 227 impugning Ext.P2 order of the
court by which the petitioner has been directed to pay deficit stamp duty
and penalty within three days.
2. Very strenuous arguments were addressed before me by
Mr.Kodoth Sreedharan, learned counsel for the petitioner who invited
my attention to a number of judgments of this court including those in
Mathai Mathew v. Thampi [1989 (1) KLT 138] and judgments in Little
Flower Kuries & Eneter0prises Ltd., v. Victory [1979 KLT 820]. The
learned counsel placed strong reliance on the judgment of the Supreme
Court in Empress Mills v. Municipal Committee, Wardha [AIR 1958
SC 341] and concluded by submitting that since it is possible to
construe Ext.p1 document as an agreement also. The learned Munsiff
should have construed the same as an agreement since such a
construction imposed a lesser burden on the plaintiff. The learned
counsel placed before me a copy of the plaint for my perusal.
3. The submissions of Sri.Kodoth Sreedharan were very stiffly
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resisted by Advocate Sri.Vipin Das who would cited the judgments of
this court in Radha v. Sankaranarayanan [2007 (1) KLT 20]]
Gopakumar v. P.Easwar Pillai [2006 ILR (1) Kerala 740] and also that
in Thomas & another v. Sasidharan & others [2004 (2) KLJ 153].
4. I shall at the very outset state that Ext.P2 order passed by the
learned Subordinate Judge is a well reasoned order in the sense that
the learned judge has given fairly sound reasons for supporting his
decision. The learned Judge has referred to the judgments in Mathai
Mathew’s case and also M.R.Sreedharan v. G. Gopi (2003(1) KLJ 668]
and has noticed that the distinguishing feature between bonds and
agreements is that bonds create a fresh obligation to pay while
agreements record and reiterate an existing obligation. The learned
judge noticed that Ext.P1 agreement is dt.29.02.92 and it is recorded
therein that the agreement itself shall be the receipt for the sum of
Rs.1,50,000/- which had been paid by cash on the same day by the
plaintiff to the defendant for his business. Therefore the learned Judge
found that it is under Ext.P1 itself that the liability is created and it is not
correct to say that the liability had already been created, when the
parties executed Ext.P1.
5. Ext.P1 is styled as an agreement and stamped as an
agreement by its author who is none other than the defendant
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respondent. Ext.P1 is capable of being interpreted as a document
necessitated for the purpose of creating a receipt for a loan transaction
of Rs.1,50,000/- which the parties had between them earlier on the
same day. Such an interpretation cannot be ruled out when one goes
through paragraph 3 of the plaint wherein it is averred that after
borrowing a loan of Rs.1,50,000/- the defendants had executed the
agreement incorporation their undertaking to make repayments.
Looking at Ext.P1 that way, Ext.P1 is capable of being interpreted as an
agreement also. Since such an interpretation imposes lesser burden on
the plaintiff, I apply the principles laid down by the Supreme Court in
Empress Mills’ case(supra) and the judgment by this Court in Mathai
Mathew’s case(supra) and hold that the learned Subordinate Judge
should have allowed marking of Ext.P1 as an agreement.
The result is that the Writ Petition will stand allowed. Ext.P2 will
stand set aside. It is also held that the stamp duty already paid on
Ext.P1 is sufficient. The learned Subordinate Judge is directed to
permit marking of Ext.P1 in evidence and dispose of the suit in
accordance with law.
PIUS C. KURIAKOSE, JUDGE
btt
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