Posted On by &filed under Andhra High Court, High Court.


Andhra High Court
Nagala Dinne Erranna vs Angadi Modappa And Anr. on 15 March, 1963
Equivalent citations: AIR 1963 AP 457
Author: S Raju
Bench: S Raju


ORDER

Satyanaranyana Raju, J.

1. This Revision Petition is directed against a finding of the Court of Dt. Munsif Adoni, on a preliminary issue in a suit instituted on the foot of a promissory note.

2. The 1st respondent instituted a suit for recovery of certain sum of money on the foot of a promissory note. The present petitioner and his brother (the defendants in the action) pleaded inter alia that the suit promissory note, not having been properly stamped, was not admissible in evidence. There were other pleas taken by the defendants. But as this plea that the srit promissory note is not valid and is not enforceable in Jaw would, if held, in favour of the defendants render the trial of the other issues unnecessary, it was taken up as a preliminary issue. On a consideration of the various contentions raised before him, the Munsif held that the document, having been certified to be duly stamped by the Collector, is valid and found issue No. 2 in favour of the plaintiff.

3. For a proper appreciation of the question which arises for consideration in this revision petition, it is necessary to read the relevant provisions of the Indian Stamp Act. Section 35, which pro-vides that instruments not duly stamped are inadmissible in evidence, reads as follows :-

“No instruments chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:

Provided that —

(a) any such instrument not being an instrument chargeable with a duty not exceeding, ten naye Paise, only, or a bill of exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty together with a penalty of five rupees or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion.”

 

4. Section 35 provides that no instrument chargeable with duty shall be admitted in evidence for any purpose. It was held by their Lordships of the Privy Council in Ram Rattan v. Parma Nand, AIR 1946 PC 51, that the words "for any purpose" should be given their natural meaning and effect and would include a collateral purpose. Proviso (a) to Section 35 allows subsequent stamping on payment of penalty which is subject to a minimum of rupees five. If the deficit duty and penalty is paid, the Court admits it and certifies it under Section 42 (1) and sends an authorised copy to the Collector under Section 38 (1). If the duty and penalty is not paid, the Court refuses to admit the instrument and sends the original to the Collector under Section 38 (2). In the ease of instruments, bearing stamps of proper amount  but  of  improper description,      the Court, instead of levying duty and penalty, may adjourn the case and give the party an opportunity of getting the mistake rectified by the Collector acting under Section 37 and Rule 18. This privilege is not admissible and the defect cannot be cured in three cases, viz.,
   

(i) instruments   chargeable   with   a   duty      of ten naye  paise;
 

(ii) bills of exchange, whatever be the amount of  duty with which they are chargeable, and
 

(iii) promissory notes, whatever be the amount of duty with which they are chargeable. 
 

5. So far as the present instrument is concerned, the finding of the tower Court is that it satisfied the definition of a ‘promissory note’ and must, therefore, be duly stamped. The lower Court has, however, held that as the plaintiff had paid the penalty and obtained an endorsement from the Collector, the defect, if any, has been cured.

6. Section 37 of the Indian Stamp Act empowers the State Government to make rules providing that where an instrument bears a stamp of sufficient amount but of improper description, it may, oh payment of the duty with which the same is chargeable, be certified to be duly stamped, and any instrument so certified shall then he deemed to have been duly stamped as from the date of its execution. The object of Section 37 is to enable instruments bearing stamps of sufficient amount but of improper description to be validated by the Collector without payment of penalty. Section 37 empowers the Government to make rules that such an instrument may be certified to be duly stamped on payment of the duty with which it is chargeable. It is pursuant to the power vested in the Government under Section 37, rules have been framed. The relevant rule with which we are now concerned is Rule 18 which reads as follows:

“Provision for cases in which improper description of stamp is used — When an instrument bears a stamp of proper amount, but of improper description, the Collector may, on payment of the duty with which the instrument is chargeable, certify by an endorsement that it is duly stamped.” The Proviso to this rule is in the following terms:-

“Provided that where the stamp borne on the instrument is a postage stamp and the proper description of stamp is a stamp bearing the words “India Revenue”, or the words “Revenue B and O” or the words “Bombay Revenue”, the Collector shall so certify if the instrument was executed before, and shall not so certify if it was executed on or after the 1st April, 1935″.

In the Proviso to Rule 18, the Madras amendment has substituted the words “or the words ‘Revenue B and O’. or the words ‘Bombay Revenue’ shall be omitted, (sic) The rest of the proviso remains intact.

7. The question, which now arises for decision is whether, by reason of the payment of duty by the promisee, the defect is cured so as to make the instrument admissible. The argument on behalf of the plaintiff which indeed was the view taken by the lower Court is that the suit promissory note having been engrossed on a non-adhesive stamp of more than the required value, the case conies within, the, ambit of the expression “stamp of improper’ description” contained in Section 37 of the Act.

8. The learned counsel for the petitioner has relied upon the Full Bench decision of the Madras High Court in Martis v. D’Souza, ILR 55 Mad 627 : AIR 1932 Mad 390 (FB). There, it was held that a promissory note stamped with quarter-anna postage stamps can be validated by the Collector under Rule 18, Government of India Stamp Rules, because quarter-anna postage stamps, not being included in Rule 16, are stamps of improper description, and hence if such stamps of sufficient amount are borne by the instrument, it can be validated by the Collector under Rule 18 there was no consideration of the effect of the proviso (a) to Section 35. In Alamelu Ammal v. Rangai Gounder, AIR 1945 Mad 42 : 1944-2 Mad LJ 180 Horwill J., pointed out that proviso (a) to Section 35 of the Stamp Act, in general permits documents that are not properly stamped being admitted in evidence provided the penalty is paid, with the exception of promissory notes and some other documents.

9. Reliance has been placed on a judgment of the Indore Bench of the Madhya Bharat High Court in Ranjit Singh v. Behramji, AIR 1957 Madh Bha 181. There, the instrument which, fell for consideration was a promissory note and it was stamped with four annas revenue stamp of the Government of India instead of the impressed stamp of the Madhya Bharat Government. The learned Judge, Chaturvedi J., held that it was at the most an instrument bearing ‘a stamp of sufficient amount but of improper description’ within the meaning of Section 36 of the Indore Stamp Act (which corresponds to Section 37 of the Indian Stamp Act), and that it could be certified to be duly stamped by the Collector within the meaning of the section. The learned Judge, after distinguishing the case, in Tukaram v. Sonaji, 10 Ind Cas 702 7 Nag LR 26 pointed out as follows:

“………………… if the object of the Stamp Act is to obtain revenue for the Government, then the contention of Mr. Garg that the stamp of Madhya Bharat was not used falls to the ground; for fiscal purposes today there is no difference between the Government of India and the State of Madhya Bharat. If it is not a stamp of Madhya Bharat Government and is a revenue stamp of the Government of India at the most it is ‘a stamp of sufficient amount but of improper description’ within the meaning of Section 36 of the Indore Stamp Act (which corresponds to Section 37 of Indian Stamp Act) and can be certified to be duly stamped by the Collector within the meaning of this Section.”

This   decision   did   not  consider  the   effect   of  the proviso to  Section 35   of the Indian Stamp Act and I am unable to endorse the view taken by the learned Judge.    If the proviso to Section 35 (a)  is absolute in its terms;
 

-- as I think it is there is no question of any exception being made in favour of a  promissory note if it bears "a stamp of improper description."
 

It is then said that the Collector's Certificate is conclusive and cannot be reviewed. If the Collector had no jurisdiction, to certify an instrument as having been duly stamped, there is no question of his certificate having the effect of conclusiveness or finality. If inasmuch as proviso (a) to Section 35 expressly forbids the Collector to validate an unstamped promissory note, the order of the Collector validating such, an instrument cannot have any legal effect; and it is open to a civil court to consider the effect of the certificate as regards the admissibility of the promissory note in evidence. In this view, it follows that the certificate granted  by   the   Collector  cannot  bind  the     civil court.
 

10. In my view, the conclusion reached by the learned Dt. Munsif cannot be sustained. The finding of the lower Court is, therefore, set aside and this Revision Petition is allowed; but, in all the circumstances of the case, there shall be no order as to costs.
 


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