IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31409 of 2008(L)
1. M/S.CHANDRAGIRI CONSTRUCTION COMPANY
... Petitioner
Vs
1. K.A.ABDULLA, 42 YEARS,
... Respondent
For Petitioner :SRI.M.NARENDRA KUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :13/01/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).Nos.31409(L), 31427(N) &
31488 of 2008(W)
and 4142 of 2009(R)
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Dated this the 13th day of January, 2010
J U D G M E N T
Common petitioner in all the above four writ petitions is a
company which is represented by its managing partner. The
above petitioner instituted four suits against its tenants in
occupation of four shop rooms situate in a multi storied building
in Kasargode town. Three of the above suits are pending before
the Sub Court, Kasargode and one of them before the Munsiff
Court, Kasargode. To substantiate the rental arrangement in
each case the plaintiff-company produced document, which,
according to it is an agreement to lease, written in a stamp paper
for Rs.50/- duly subscribed by the tenant as having agreed to the
terms and conditions of the lease arrangement. When the suits
came up for trial and these documents were tendered to prove
the lease arrangement an objection was raised by the defendants
in the respective suits that the agreements are insufficiently
stamped. Though the petitioner-company contended the
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documents are only agreements to lease rejecting that contention
the respective courts passed impugned orders produced in the
respective writ petitions directing for impounding the documents
and payment of the deficit stamp fee and penalty as
contemplated under Article 33 of the Stamp Act. Order so
passed by the two courts, Sub Court and Munsiff Court, in the
respective suits are challenged in the writ petitions. Since
common questions of law and facts are involved, after being
heard together, they are disposed by this common judgment.
2. Though notice was given to the respective
respondents, none of them has entered appearance. I heard the
learned counsel for the petitioner.
3. At the time of hearing, confining his submissions to
Section 37 of the Kerala Stamp Act and placing reliance on two
decisions of the apex court in Peteti Subba Rao v. Anumala S.
Narendra (2002(10) SCC 427) and Chilakuri Gangulappa v.
Revenue Divisional Officer, Madanpalle and Another (2001
(4) SCC 197) the learned counsel for the petitioner sought
indulgence of this Court for sending over the documents to the
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District Collector as provided under Section 37(2) of the Stamp
Act for fixing of the deficit stamp fee and also penalty to validate
the documents and rendering it admissible for evidence. If such
a course is adapted, according to the counsel, petitioner can seek
for remission in the matter of penalty from that statutory
authority which is competent to fix penalty taking note of the
facts and circumstances involved. I find the plea so canvassed
deserve consideration. It has also been brought to my notice
that the order passed by the learned Sub Judge in O.S.No.51 of
2007 which is impeached in W.P.(C).No.31488 of 2008 relate to a
photocopy of the agreement produced over which no order for
payment of deficit stamp fee and penalty and of impounding of
document can be made under law. My attention has also been
invited to Hariom Agarwal v. Prakash Chand Malviya (2007
(8) SCC 514) to contend that an instrument as defined under
Section 2(J) of Kerala Stamp Act, which could be proceeded on
the ground of deficiency of stamp fee, should be the original
instrument and not a photocopy. I find the counsel is well
founded in raising such an objection impeaching the correctness
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of the order passed for impounding the document, a photocopy of
an original instrument produced in the case as ordered by the
learned Sub Judge. So much so, the order impugned in W.P.(C).
No.31488 of 2008 passed by the learned Sub Judge ordering
deficit stamp fee and payment of penalty and impounding of the
photocopy of the agreement produced shall stand set aside. So
far as the orders challenged in the other writ petitions, such
orders to the extent of directing payment of deficit stamp fee and
penalty shall stand set aside retaining the order for impounding
the documents produced for the reason of insufficiency of stamp
fee. Those documents in original shall be sent over to the
Collector for being proceeded under Section 39 of the Kerala
Stamp Act as provided under Section 37(2) of the above Act. In
the above three suits, the respective courts are also directed to
keep in abeyance further proceedings for a period of three
months after sending over the documents for imposing penalty
impounding as indicated above to the District Collector to provide
a reasonable opportunity to the plaintiff to re-produce them after
adjudication by the statutory authority. After expiry of the above
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period the court shall dispose the suit whether or not documents
are produced after adjudication.
The suit O.S.No.51 of 2007 on the file of the Sub Court
covered by W.P.(C).No.31488 of 2008 shall be proceeded and
disposed in accordance with law. The other three suits covered
by the other writ petitions shall be dealt with and disposed as
indicated above.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-