ORDER
K. Chandru, J.
1. This Civil Revision Petition has been filed against the order dated 21.11.2005 passed in O.S. No. 70 of 2004 by the Subordinate Judge, Nilgiris, Uthagamandalam, holding that the plaint Document No. 1 in O.S. No. 70 of 2004 is a bond and is liable to Stamp Duty.
2. The revision petitioner / plaintiff filed the suit in O.S. No. 70 of 2004 claiming a sum of Rs. 3,04,930/- together with interest from the defendant. Along with the plaint, an agreement dated 11.6.2000 was filed by him, which is an agreement executed by the defendant to the plaintiff. A written statement was filed by the respondent herein disputing the liability to pay Stamp duty. The only objection raised by them with reference to the instrument was that it is an inquiet and incomplete instrument that has been fabricated and created for the purpose of this case and that the agreement was not signed by any parties and there is no mutuality of mind. It is also stated that it is inadmissible in evidence and no suit claim can be based on the said document. Thereafter, the suit, which was instituted in the year 2004, was continued to be dragged on for more than one year and on 21.11.2005, the trial Court passed an order stating that the revision petitioner did not pay the Stamp Duty penalty and it is not an agreement as it lacked the ingredients of an agreement and it can only be taken as a bond. According to the trial Court, under Section 2(5) of the Indian Stamp Act, the document is only a bond and not an agreement. By stating so, strangely, the trial Court directed the plaintiff to pay the Stamp Duty on or before 07.12.2005 holding it as a bond, failing which the plaint shall be rejected under Order VII Rule 11 CPC. It is against this order, the present Civil Revision Petition has been filed.
3. I have heard Mr. Srinath Sridevan, learned counser appearing for the revision petitioner and Mr. V.Srinivasan, learned Counsel appearing for the respondent and have perused the records. Interim stay has been granted on 06.02.2006 till 13.02.2006 and notice was ordered.
4. Today, when the matter was called, with the consent of the parties, the main Civil Revision Petition itself was taken up for disposal.
5. The learned Counsel appearing for the revision petitioner stated that the document produced by them was only an agreement and not a bond and in any event, the trial Court cannot pass an order by creating a defaultwhereby the non-payment of Stamp Duty will result in the rejection of the plaint itself. At the worst, the trial Court will have to impound the document and send it for appropriate Stamp Duty to be levied by the concerned authority, who will also create a charge over the said document and also prohibit the said document from being relied upon.
6. The learned Counsel further contended that the said document is not a bond but only an agreement and the recital and the body of the document show that it can never be a bond. It is, in this context, the learned Counsel relied upon a Full Bench judgment of the Kerala High Court reported in : AIR1985Ker8 [The Secretary, Board of Revenue, Trivandrum v. Sellwell Tea Agencies] and drew the attention of this Court to paragraph 9, which reads as follows:
Para 9: The letter cannot also be regarded as a 'bond' for the purposes of Article 13, because a bond, as defined in Section 2(a), is an instrument whereby an obligation to pay is created. The obligation of a prized subscriber to pay future instalments arises from the chitty variola; a pre-existing obligation cannot be the creation of an instrument subsequently executed.
7. The learned Counsel also drew the attention of this Court to the decision of the Supreme Court reported in [State of Kerala and Ors. v. Mcdowell & Co. Ltd.] wherein elaborate discussion has been made by the Supreme Court with reference to as to what constitute the 'Bond'. The ratio of the majority view of the aforesaid decision is found in paragraphs 19 and 20, which are extracted below:
Para 19: The Division Bench of the Calcutta High Court, in Hira Lal Sircar v. Queen Empress considered the case of moneylenders who were convicted under the Stamp Act. They lent money and the transactions were entered in their account books. The entries were singed by the debtors and were attested. The Division Bench held that these entries were not bonds but acknowledgements. Emphasis was placed upon the word obliges in the definition of a bond and it was said that no document can be a bond...unless it is one which itself creates an obligation to pay money.... Documents acknowledging promises to repay advances or to pay for goods, which the law always implied when money was borrowed and goods were purchased, were not bonds. In Mai Dhan Gupta v. Board of Revenue, U.P. the instrument was executed to ensure payment of the State Governments dues. A learned Single Judge of the Allahabad High Court held that the words in the definition of a bond obliges himself to pay money made it clear that the obligation was not a pre-existing one. Where the obligation was a pre-existing one an instrument executed subsequently setting out the nature of the obligation was a mere agreement. In the case before the learned Single Judge, while the instrument did not create any fresh liability or obligation, it imposed a personal liability upon a person who was not otherwise liable and it was held that it was a bond. In Hindustan Sugar Mills Ltd. v. State of U.P., the facts were that the company was assessed to sales tax. It appealed and asked for stay of recovery thereof. The tax court granted a stay on condition that the appellant furnished security to the satisfaction of the Sales Tax Officer. In order to comply with that condition one Adukiya executed an instrument for and on behalf of the company. The question which a Special Bench of the Allahabad High Court considered was this instrument a bond. The Special Bench noted that the Stamp Act described a bond as an instrument which by a person obliged himself to deliver money. These words, in its view, indicated that the obligation to pay money should arise under the terms of the instrument itself. In other words, the obligation should be created by the instrument. In the case before the Special Bench, the liability to pay sales tax existed under the provisions of the Sales Tax Act itself and the mere recital in the document that Adukiya would discharge the liability did not create a new liability under and by the instrument. The instrument was, therefore, held not to be a bond. In Patel Stone Trading Co., Nagpur v. Ramsing, a learned Single Judge of the Bombay High Court considered an instrument in which the defendant acknowledged liability in a stated amount and expressly promised to repay the same. The learned Judge held that the document was executed for the purposes of creating an obligation whereby the defendant agreed to pay to the plaintiff the stated amount and interest thereon. This being the dominant purpose and intention of the instrument, it was a bond. On passant the learned Judge said, and upon this sentence much emphasis was laid. In the present case, either in the statute or common law there was no pre-existing right or liability between the parties.
Page 20: In our view, the definition of bond in Sub-clause (1) of Clause (a) of Section 2 of the Kerala Stamp Act is clear and unambiguous. It must be read as it stands, nothing may be read in or implied. The word whereby must be read as meaning what it ordinarily does namely, by which. An instrument, therefore, by which a person puts himself under an obligation to pay a sum of money to another on condition that the obligation shall be void if some specific act is, or is not, performed is a bond. The only question to pose is : Has the executant of the instrument put himself under an obligation, or bound himself, to pay a sum of money to another, the obligation to be void under specified circumstances? If the executant can be sued for that sum of money only upon the strength of the instrument, the instrument is a bond.
8. A perusal of the agreement dated 11.6.2000 filed in the typed set shows that there is no obligation created under the said document and it arises out of the quantum of work done by the parties and the balance amount should be paid by the signatory to the document. It is wrong on the part of the trial Court to reject the plaint even before the trial solely on the ground that the document has not been stamped in accordance with the provisions of the Indian Stamp Act. If for some reason, it had come to the conclusion that it is a bond, then it should either refuse to rely upon it or impound the same for the purpose of paying the necessary Stamp Duty and ought not to have rejected the suit at the threshold. Therefore, the order of the trial Court is completely erroneous and the trial Court has not adverted to the authoritative pronouncements of the higher Courts in this regard.
9. In the light of the above, the Civil Revision Petition shall stand allowed and the docket order passed by the trial Court dated 21.11.2005 is hereby set aside and the trial Court is directed to deal with the suit in O.S. No. 70 of 2004 on merits and in accordance with law. However, there will be no order as to costs. The trial Court is directed to proceed to treat the document dated 11.4.2004 as only an agreement between the parties and not as a bond as held by the trial Court. Since it is a suit of the year 2004, the trial Court is directed to dispose of the suit within a period of three months from the date of receipt of a copy of this order. Both the parties are directed to co-operate in completing the trial without putting any obstruction.