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Judgment
Thomas P. Joseph, J.—Ext. P1, order passed by the learned Sub Judge, Neyyattinkara on 30.11.2011 in O.S. No. 320 of 2009 holding Exts. A1 and A2 as ''bonds'' and directing payment of stamp duty and penalty accordingly is under challenge in this original petition. According to the petitioners, at a time when they were to be given employment in the Mary Matha College of Engineering and Technology of which the 1st respondent then was the chairman, the latter had received Rs. 2,00,000/- from the 1st petitioner and Rs. 3,00,000/- from the 2nd petitioner (allegedly) for development of the college and on the undertaking that at the time petitioners quit the job, the said amounts will be refunded to them free of interest. According to the petitioners, though they demanded refund of the amount at the time of resigning the job the amount was not refunded as agreed. Hence they sued for recovery of money.
The learned Sub Judge considered the question whether Exts. A1 and A2 dated 07.09.2007 and 29.01.2008 respectively, are agreements or bonds?. Accepting the contentions of the respondents, it was found that those documents are ''bonds'' defined in Sec. 2(a) of the Kerala Stamp Act, 1959 (for short, "the Act"). That order is sought to be set aside in this proceeding.
The learned counsel for the petitioners submits that the learned Sub Judge has wrongly understood the decision in Viswanathan Vs. Leslie Philip, . According to the learned counsel, if the liability is preexisting and if the document only evidences the liability and it is agreed that the said liability will be discharged as referred to in the document, it can only be treated as an ''agreement'' and not a ''bond''. It is also pointed out by the learned counsel that as per Sec. 2(a)(ii) of the Act, the document to become a bond must be attested by witnesses whereas Exts. A1 and A2 are not attested by any witness. Hence, the documents cannot come within the definition of ''bond'', it is argued.
The learned counsel for respondents 2 and 3 supported the order of the court below. It is contended that the documents are fabricated by the petitioners in collusion with the 1st respondent.
In this proceeding it is not necessary to go into the dispute as to genuineness of the documents. That is a matter the trial court has to decide.
I am only concerned with the question whether Exts. A1 and A2 (copies of which are given to me for perusal) are ''agreements'' or ''bonds''.
The expression ''bond'' is defined in Sec. 2(a) of the Act as under:
(a) "bonds" includes-
(i) any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be;
(ii) any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another; and
(iii) any instrument so attested, whereby a person obliges himself to deliver grain or other agricultural produce to another.
It is not disputed that Exts. A1 and A2 do not come within the mischief of Clauses (i) and (iii) referred above. Then the question is whether the document comes within the mischief of Clause (ii).
As per Clause (ii) of Sec. 2(a) of the Act, the instrument must have been attested by a witness. The copy of Exts. A1 and A2 given to me show that the said documents are not attested by any witness. Therefore, the documents do not come within the mischief of Clause (ii) of Sec. 2(a) of the Act. Even otherwise, I am not inclined to accept the reasoning of the trial court.
In Viswanathan v. Leslie Philip (supra) what this Court held is that if liability to pay the amount is created for the first time by the document concerned, it is a ''bond'' while if the document speaks about a pre-existing liability, it is not a ''bond''.
According to the petitioners, at the time they were to be appointed as lecturers in the college, the respondents received the amount mentioned in the documents (Exts. A1 and A2) for development of the college on agreement to refund the same at the time they quit the job. That means, the liability was not created as per Exts. A1 and A2 but, by the (alleged) understanding reached between the petitioners and the respondents as aforesaid. This is clear from the wordings of Exts. A1 and A2 which are identical. There, it is stated that 1st respondent
have received a sum of Rs.................. as refundable development deposit from................... I declare that I will give back this amount without interest when you demand while quitting the job as Lecturer of the said Engineering College.
It is clear that when the expression used is that the 1st respondent "has received" the amount, it refers to a transaction which took place prior to the execution of Exts. A1 and A2, may be the same day, the same time, nevertheless it refers to a pre-existing liability. In otherwords, it is not by Exts. A1 and A2 that the liability to refund the amount was created. Viewed in that line also Exts. A1 and A2 cannot be treated as ''bonds''. ''Exts. A1 and A2 are only agreements.
It is agreed by learned counsel on both sides that if Exts. A1 and A2 are treated as agreements, no further stamp duty is payable. Resultantly, the original petition is allowed as under:
i. Ext. P1, order dated 30.11.2011 in O.S. No. 320 of 2009 is set aside.
ii. It is held that Exts. A1 and A2 dated 07.09.2007 and 29.01.2008 respectively, are not ''bonds'' but, only ''agreements''.
iii. I make it clear that I have not expressed any opinion as to the genuineness or otherwise of the documents in question.