Jagdish Sahai, J. - (1.) This case has come to us on a reference made by our brother D.S. Mathur. The facts giving rise to this writ petition are that the Krishna Kattha Industries (Private) Limited, Haldwani district Nainital (the petitioner before us) filed a suit in the Court of the District Judge, Kumaun, against the State of U.P. for a mandatory injunction and also applied for a temporary injunction. The learned District Judge allowed the application by means of the order dated April 8, 1960, in which he, inter alia, required the company to hypothecate property to the tune of several lacs of rupees whereupon on behalf of the company hypothecation bond (annexure 'B') scribed on a stamp folio of Rs. 18/- was filed in his Court. The relevant portions of that bond read as follows: "Hence in pursuance of the said order, J, Sarish Kumar son of Shri Krishna Pyarey Lal Managing Director of the Krishna Kathha Industries Private Limited "July authorised by the resolution of the Company dated 7th April, 1960" and I, Ram Kumar, s/o Shri Krishna Pyare Lal Director of the Company and I, Raghuvansh Kumar, s/o Shri Krishna Pyare Lal, Director of the Company agree and declare that if the defendant be declared by the Court to be entitled to any amount over and above the sum of Rs. 2,90,000/- already paid by the plaintiff to the defendant and Rs. 75,000/-for which call deposit receipts of Rs. 25,000/- each duly pledged in favour of the Court, the defendant shall be entitled and shall be at liberty to realise such excess sum by enforcing the charges created hereunder by the sale of the property to the extent of Rs. 3,00,000/- so hypothecated and the aforesaid Company and "its directors, hereby hypothecate and mortgage the properly fully described in the schedule attached hereto situated in Haldwani district Nainital". "The Company or any one on its behalf shall have no objection whatsoever in the defendant's realising the same in pursuance of the orders of the Court dated 8th April, 1960 and the Company shall be liable and responsible to pay the aforesaid sum." " (underlined (here " ") by us). When the bond was presented to the Sub-Registrar for registration he after impounding it on the ground that it was insufficiently stamped, sent it to the Deputy Commissioner, who referred the case to the Board of Revenue under Section 56(2) of the Indian Stamp Act (hereinafter referred to as the Act). An application was made to the Board of Revenue to refer the case to the High Court which it refused to do. The Board of Revenue on 1S-3-1961 held that the appropriate article of the Act applicable to the deed was Article 40(b) and that the stamp duty payable was Rs. 4,500/- and not Rs. 18/- paid By the petitioner company. It, therefore, directed the petitioner company to pay Rs. 4,4827- (Rs. 4,500/-minus Rs. 18/- already paid), and a sum of Rs. 107- as penalty, in all Rs. 4,492/-. The petitioner then made a review application which was dismissed by the Board on 24-5-1961. whereafter the present writ petition was filed in this Court.
(2.) The prayer in. the petition is for the issue of a writ of certiorari calling for the record of the case and quashing the orders of the Board of Revenue dated 18-3-1961 and 24-5-61. It has also been prayed that a mandamus be issued commanding the respondents not to take any steps for the recovery of the amount of the stamp duty and penalty as ordered by the Board. In addition there is the usual prayer for the issue of such writ, order or direction as this Court may, in the circumstances of the case, deem fit and proper to issue.
(3.) The only question involved in this writ petition and requiring decision at our hands is whether Article 57, or Article 40(b) of Schedule I-B of the Act would be applicable to the deed before us. Article 57 of the Schedule reads as under; "57. SECURITY BOND OR MORTGAGE DEED executed by way of security for the due execution of an office, or to account for money or other property received by virtue thereof or executed by a surety to secure the due performance of a contract or the due discharge of a liability, (a) when the amount secured does not' The same duty as a Bond (No. 15) for the exceed Rs. 1,000;amount secured. (b) it) any other case. Eighteen rupees.;