IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18/04/2006
CORAM
THE HON'BLE MR.JUSTICE F.M. IBRAHIM KALIFULLA
C.R.P. (PD) No.574 of 2006
Karnataka Bank
Limited A Company registered under
the provisions of the Indian
Companies Act, 1913 carrying
on business of banking and
having its registered office
at Mahaveer Circle, Kankanady
Mangalore 575 002 and several
Branches throughout India and its
Triplicane Branch at No.132-A
Triplicane High Road, Chennai-5
rep. by its Branch Manager,
Mr.K.S.Janardhana .. Petitioner
-Vs-
1. Abdul Hussain
2. D.Hussain
3. D.Razia Begum .. Respondents
Petition under Article 227 of the Constitution of India against the
return of the plaint in O.S.Sr.No.10975 of 2004 by the learned Subordinate
Judge, Poonamallee.
For Petitioner : Mr.S.R.Rajagopal
Mr.S.Senthilnathan
Addl. Government Pleader (CS)
assisted the Court
:O R D E R
The petitioner is aggrieved inasmuch as the Court below declined to
number the suit filed by the petitioner and returned the same directing the
petitioner to comply with payment of stamp duty penalty in respect of Document
No.1, which is a memorandum of deposit of title deeds, which according to the
Court below requires such payment by virtue of Article 6(2)(a) of the Indian
Stamp Act.
2. When the revision came for admission on 17.4.2006, notice was
ordered to be served on the Additional Government Pleader (Civil Side) to
assist the Court.
3. Today, when the revision was taken up for hearing, the learned
Additional Government Pleader (Civil Side) pointed out that the very
Explanation to Article 6(2)(a) and (b) of the Indian Stamp Act came to be
added by Act 31 of 2004, published in the Tamil Nadu Government Gazette
Extraordinary Part-IV, Section 2, dated 25.11.2004, which came into effect on
16.12.2004. The explanation reads as under:
“Explanation.- For the purpose of this Article, notwithstanding anything
contained in any judgment, decree or order of any court or order of any
authority, any letter, note, memorandum or writing relating to the deposit of
title deeds whether written or made either before or at the time when or after
the deposit of title deeds is effected, and if it is in respect of the
security for any loan, such letter, note, memorandum or writing shall be
deemed to be an instrument evidencing an agreement relating to the deposit of
title deeds.”
4. In fact, there is a decision of the Hon’ble Chief Justice, M.N.
Chandurkar, reported in 100 Law Weekly 4 in Nanjappa, H.G. v. M.F.C.
Industries (P) Ltd., wherein, the learned Judge has held that memorandum
accompanying a list of title deeds deposited under an equitable mortgage did
not require registration and is admissible in evidence.
5. Apparently, the Explanation came to be added to the said Article
in the light of the ratio laid down in the said decision. In any case, the
Document No.1, which is a memorandum of deposit of title deeds, is dated
11.11.2000. Therefore, even applying Article 6(2)(a) of the Indian Stamp Act,
having regard to the addition of Explanation with effect from 16.12.2004,
there was no scope to hold that the same would attract levy of stamp duty
penalty to the present Document No.1, inasmuch as the said document came into
existence long prior to the inclusion of the Explanation to Article 6(2)(a) of
the Act.
6. Therefore, having regard to the decision reported in 100 Law
Weekly 4, referred to above, as well as the Explanation added to Article
6(2)(a) of the Act, the return of the plaint on that ground cannot be
sustained. The revision petition, therefore, stands allowed. The petitioner
shall be permitted to re-present the plaint within one week from the date of
receipt of copy of this order. The Court below is directed to number the
plaint if the same is otherwise in order. No costs.
The assistance rendered by the learned Additional Government Pleader
(Civil Side) is appreciated.
To:
The Subordinate Judge
Poonamallee.