THE BANK OF MADURAI LTD., REPRESENTED BY M.V. SRINIVASAN AND ANOTHER Vs. P.C. SUBBA RAJU AND ANOTHER

JUDGEMENT

(1.) In connection with the execution of a promissory note on 30th October 1968 by the Respondent they deposited with the Petitioner bank on 31st October 1968 documents relating to their immovable property with intent to create an equitable mortgage upon it. On failure of the Respondents to pay the debt evidenced by the aforesaid promissory note, Petitioner bank came to Court and sought for a mortgage decree claiming an equitable mortgage over the property and relied upon the document dated 31st October 1968 executed by the Respondents in evidence of such deposit. Check slip was issued by the Court below stating that the deposit so related it would not permit the Plaintiff to sue on it as if a mortgage has been created and treated the document as coming within the purview of Article 6 of the Indian Stamp Act. Though, no doubt, the office of the Subordinate Judge, Chingleput was in favour of admitting the instrument as an agreement under Article 5 of the Indian Stamp Act, the Court -fee Examiner took a different view and claimed the deficit stamp duty as also the penalty. The matter came up before the Court and the point for determination was whether the document, dated 31st October 1948 purporting to be an agreement has to be valued under Article 6 of the Indian Stamp Act or only under Article 5(c). The learned Judge took the view that on a reading of the agreement as above, the title deeds should be deemed 80 have been deposited only in pursuance of the above agreement and as such it should be treated as an instrument within the meaning of Article 6 of the Indian Stamp Act. He there ore, directed the Plaintiff Petitioner to pay the additional stamp duty. It is against this the present civil revision petition has been filed.

(2.) The relevant portion of the document which has come up for scrutiny before the lower Court as well before me runs as follows:

(3.) Under similar circumstances the Supreme Court in United Bank of India Limited v/s. Lekharam Sonaram and Co. : A.I.R. 1965 S.C. 1591 held that the letter considered by the Court in that case did not by itself create a mortgage over the properties, but was only an instrument which could be interpreted as being an evidence of the deposit of the title deeds by the borrower. In the instance case it is only a bare agreement that was entered into between the parties, and not an instrument which contains the bargain between the parties with regard to the deposit of title deeds and conditions subsidiary and ancillary thereto. The deposit preceded the time when the documents were handed over to the Bank. They were only confirming the deposit under the instrument. The instrument does not by itself evidence the deposit; nor does it create a mortgage by itself. As this is only a record of past events and a deed confirmation letter and does not lead the conclusion that it is a contemporaneous record bringing home to the creditor that the deposit was made at or about the time when the agreement was drafted, I am of the view that this is not only admissible in evidence as an agreement but it is not necessary to invoke Article 6 of the Indian Stamp Act, and hold that the instrument is not property stamped. The Government Pleader, after going through the documents, is satisfied that the decision in United Bank of India Limited v/s. Lekharam Sonaram and Co. : A.I.R. 1965 S.C. 1591 which has been followed in Deb Dutt Seal v/s. Raman Lal Phumra : A.I.R. 1970 S.C. 659 would apply to the facts of this case and that the instrument is not chargeable as was directed to be done by the Court below. The Civil revision petition is allowed. There will be no order as to costs.