Decided on December 15,1962



- (1.) The question for decision is whether the document sued on is a Promissory Note or a Bond. The court below held that it was a promissory note and hence not admissible in evidence as it was not properly stamped. The suit was accordingly dismissed.
(2.) The plaintiff petitioner contends that the document having been held to be a bond by the Collector who levied deficit stamp duty and penalty , on such basis, the court was incompetent to go into the question. What happened in this case is that the court impounded the document and sent it to the Collector for appropriate action. The Collector treated the document as a Bond, levied the stamp duty and penalty and returned it to the court with a certificate that the stamp duty and penalty were collected. According to the petitioner the decision of the Collector is final and conclusive.
(3.) I am not inclined to accept this argument. S.42 of the Travancore Cochin Stamp Act under which the Collector issued the certificate substantially corresponds to S.40 of the Indian Stamp Act. S.42 (T. C. Act) reads as follows: "Collector's power to stamp instruments impounded: (1) When the Collector impounds any instrument under S.35, or receives any instrument sent to him under S.40, sub-s.(2), not being an instrument chargeable with a duty of two annas or less than two annas only or a bill of exchange or promissory note, he shall adopt the following procedure: (a) If he is of opinion that such instrument is duly stamped, or is not chargeable with duty, he shall certify by endorsement thereon that it is duly stamped, or that it is not so chargeable, as the case may be, and shall thereupon deliver such instrument, to the person by whom it was presented, or return it to the Officer from whom it was received for the purpose of being returned to the person from whose possession it came into the hands of suit Officer. (b) if he is of opinion that such instrument is chargeable with duty and is not duly stamped, he shall require the payment of the proper duty or the amount required to make up the same, together with a penalty of five rupees or if he thinks fit an amount not exceeding ten times the amount of the proper duty or of the deficit portion thereof whether such amount exceeds or falls short of five rupees: Provided that, when such instrument has been impounded only because it has been written in contravention of S.14 or S.15, the Collector may, if he thinks fit, remit the whole penalty prescribed by this section. (2) Every certificate under clause (a) of sub-s.(1) shall, for the purpose of this Act, be conclusive evidence of the matters stated therein." The first clause shows that the procedure prescribed in sub clauses (a) and (b) is to be resorted to only in the case of instruments other than those chargeable with a duty of two annas or less than two annas only or a bill of exchange or a promissory note. In case the instrument falls under the excepted categories the Collector cannot proceed under the section. The presumption under clause (2) does not arise when the certificate of the Collector is issued without jurisdiction. This is the view taken in Chotey v. Girraj Kishore (AIR 1926 All. 359) with which I respectfully agree.;

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