1. Regular Suit No. 33 of 1964 has been filed by the applicant Govind Ram Paliwal against the opposite party for the recovery of Rs. 18,300/- on the basis of several Hundis. One of the pleas, on which the suit has been contested is that the Hundis are not duly stamped and as such are inadmissible and the certificate granted by the Collector under Section 32(3) of the Indian Stamp Act, after the deficiency in stamp duty has been made good, could not make the Hundis admissible. The objection has been disposed of by the IV Additional Civil Judge, Agra as a preliminary issue under Issue No. 4. The trial Court held that the Hundis in suit were inadmissible for want of proper stamp duty and that the inadmissibility could not be cured by the certificate of the Collector purported to have been given under Section 32 of the Stamp Act (hereinafter referred to as the Act). Aggrieved by the finding of the trial Court, the above revision was filed by the applicant. The revision was allowed ex parte by Hon'ble Takru, J., by his order dated 25th September, 1968. The opposite party Radha Mohan thereafter applied that the ex parte order be recalled and the revision restored to its original number. The application purports to have been given under Chapter IX Rule 17 (2) Rules of the Court and under Order 47, Rule 1 read with Section 151, Civil Procedure Code. As Hon'ble Takru, J., had retired by the time the application for setting aside the ex parte order came up for hearing, the application was disposed of by Hon'ble Misra, J., who by his order dated 30th April, 1969 set aside the ex parte order ana restored the case to its original number. The revision thereafter came up for final hearing before Hon'ble K. S. Asthana, J., who was pleased to refer the case to a larger Bench. Thereafter the revision application was listed before a Division Bench of this Court consisting of Hon'ble Jagdish Sahai and B. D. Gupta, JJ. Before the Division Bench, reliance was placed by the applicant on the case of Girdhari Das v. Jagannath, (1881) ILR 3 All 115, whereas opposite party placed his reliance on the case of N. D. Errana v. A. Modappa : AIR1963AP457 . It was also contended by the counsel for the opposite party that the case of Girdhari Das (Supra) was no longer a good law in view of the change made in the statutory provision of the Stamp Act. The Division Bench thought it proper that as Girdhari Das's case was a Division Bench case, this revision should be heard and decided by a Full Bench. It accordingly recommended for the constitution of a Full Bench, that is how this revision has come to us.
2. It is not disputed that the documents on the basis of which the suit is filed are bills of exchange. It is also admitted that the bills of exchange were insufficiently stamped and that the deficiency in stamp duty has been paid and the Collector has made an endorsement to that effect on the back of each Hundi. The only point on which we are addressed by the learned counsel for the applicant is that the certificate by the Collector in respect of the Hundis in suit after the deficiency in stamp duty has been paid, is admissible in evidence and the finding of the Court below is erroneous in law. Reliance has been placed by the learned counsel for the applicant on (1881) ILR 3 All 115, wherein it was laid down by a Bench of this Court that:
'It is no doubt provided in Section 39 that this section does not authorize the Collector to make any such endorsement on promissory notes, yet an irregularity in making such an endorsement, the remedy for which will be by appeal or revision by the chief revenue authority under Section 40, will not prevent the admission of the document as evidence, for Section 39 specially provides that the instrument shall on endorsement be deemed to be duly stamped.'
3. It has also been contended by the learned counsel for the applicant that the Stamp Act being a fiscal statute enacted to secure revenue for the State, the stringent provisions of the Act are conceived in the interest of the revenue and the opposite party is not entitled to object to the admissibility of the instrument after the Collector has granted the certificate under Section 32 of the Stamp Act. Reliance has been placed on Hindustan Steel Ltd. v. Dilip Construction Co., AIR 1969 SC 1238, wherein it was laid down that:
'The Stamp Act is a fiscal measure enacted to secure revenue for the State on certain classes of instruments. It is not enacted to arm a litigant with a weapon of technicality to meet the case of his opponents. The stringent provisions of the Act are conceived in the interest of the revenue. Once that object is secured according to law, the party staking his claim on the instrument will not be defeated on the ground of the initial defect in the instrument.'
4. The case of Dattatraya Moreshwar v. The State of Bombay : 1952CriLJ955 is also relied upon in support of the contention that the provisions of a statute creating public duties are directory. Reliance is also sought on the following observations made therein:
'When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the Courts to hold such provisions to be directory only the neglect of them not affecting the validity of the acts done'.
5. On the basis of the above observations, it is submitted that the applicants could not be said to have any control over the opposite parties who were executants of the Hundi and who were entrusted with the duty of fixing the correct stamp on the Hundi. Murugayya Pillai v. Rajagopal Pillai, AIR 1942 Mad 381 is cited to show that an endorsement made on the instrument by the Collector under Section 32 is final and cannot be questioned by a Civil Court even if it was erroneous or was made out of time.
6. Kali Churn Das v. Nobo Kristo Pal, 9 Cal LR 272 which has also been relied upon by the learned counsel for the applicants lays down:
'when a document, which under the Stamp laws requires to be stamped, is tendered in evidence, the only question for the Court is whether it bears a proper stamp at the time when it is tendered. The Court is not bound, nor is it at liberty to allow the parties to go into evidence to show at what time the document was stamped.'
7. It cannot be disputed that the Stamp Act is a fiscal measure enacted to secure revenue. Under the Indian Stamp Act II of 1899, every instrument mentioned therein has to be duly stamped before the same can be admitted in evidence for any purpose. When an instrument is not duly stamped the procedure for impounding the same and making it admissible thereafter is also provided therein. The word 'duly stamped' has been defined in Section 2(11) of the Stamp Act:--
'Duly stamped', as applied to an instrument, means that the instrument bears as adhesive or impressed stamp of not less than the proper amount and that such stamp has been affixed or used in accordance with the law for the time being in force in India.'
8. The relevant sections of the Indian Stamp Act may be summarised. Section 33 deals with the examination of impounding of an instrument. Under it, every person mentioned therein before whom any instrument chargeable with duty is produced shall, if it appears to him that such instrument is not duly stamped, impound the same. Sections 31 32 and 35 which are material and relevant to the revision are as under:--
'31. Adjudication as to proper stamp (1) When any instrument whether executed or not and whether previously stamped or not, is brought to the Collector, and the person bringing it applies to have the opinion of that officer as to the duty (if any) with which it is chargeable, and pays a fee of such amount (not exceeding five rupees and not less than fifty naya Paise) as the Collector may in each case direct, the Collector shall determine the duty (if any) with which, in his judgment, the instrument is chargeable.
(2) For this purpose the Collector may require to be furnished with an abstract of the instrument, and also with such affidavit or other evidence as he may deem necessary to prove that all the facts and circumstances affecting the chargeability of the instrument with duty, or the amount of the duty with which it is chargeable, are fully and truly set forth therein, and may refuse to proceed upon any such application until such abstract and evidence have been furnished accordingly:
(a) no evidence furnished in pursuance of this section shall be used against any person in any civil proceeding, except in an inquiry as to the duty with which the instrument to which it relates is chargeable; and
(b) every person by whom any such evidence is furnished shall, on payment of the full duty with which the instrument to which it relates is chargeable, be relieved from any penalty which he may have incurred under this Act by reason of the omission to state truly in such instrument any of the facts or circumstances aforesaid.'
'32. Certificate by Collector (1) When an instrument brought to the Collector under Section 31 is in his opinion, one of a description chargeable with duty, and--
(a) the Collector determines that it is already fully stamped, or
(b) the duty determined by the Collector under Section 31 or such a sum as, with the duty already paid in respect of the instrument, is equal to the duty so determined, has been paid, the Collector shall certify by endorsement, on such instrument that the full duty (stating the amount) with which it is chargeable has been paid.
(2) When such instrument is in his opinion, not chargeable with duty, the Collector shall certify in manner aforesaid that such instrument is not so chargeable.
(3) Any instrument upon which an endorsement has been made under this section shall be deemed to be duly stamped or not chargeable with duty as the case may be; and if chargeable with duty, shall be receivable in evidence or otherwise and may be acted upon and registered as if it had been originally duly stamped:
Provided that nothing in this section shall authorise the Collector to endorse--
(a) any instrument, other than an instrument chargeable with a duty under Clause (bb) of the first proviso to Section 3 executed or first executed in India and brought to him after the expiration of one month from the date of its execution or first execution, as the case may be;
(b) any instrument executed or first executed out of India and brought to him after the expiration of three months after it has been first received in India;
(c) any instrument chargeable with the duty not exceeding twenty naya Paise or any bill of exchange or promissory note, when brought to him, after drawing or execution thereof on paper not duly stamped, or
(d) any instrument chargeable with duty under Clause (bb) of the first proviso to Section 3 and brought to him after the expiration of three months from the date on which ft is first received in the Uttar Pradesh.'
'35. Instrument not duly stamped inadmissible in evidence, etc. -- No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:
(a) any such instrument not being a receipt, or a bill of exchange or promissory note, shall, subject to all just exceptions be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;
(b) where any person from whom a Stamped receipt could have been demanded, has given an unstamped receipt and such receipt if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;
(c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;
(d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court other than a proceeding under Chapter XII of Chapter XXXVI of the Code of Criminal Procedure, 1898 (V of 1898);
(e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government, or where it bears the certificate of the Collector as provided by Section 32 or any other provision of this Act.'
9. Section 31 only gives the power to the Collector to adjudicate the proper stamp duty. The adjudication contemplated under Section 31 is anterior to the instrument being filed before any authority or court, that is before the same is impounded. Under Section 32(2) which is relevant to the present application, the Collector has to certify by an endorsement about the payment of the duty and under Section 32(3) an instrument upon which such endorsement has been made is deemed to be duly stamped. This section is subject to exceptions provided in the proviso to the section. The general authority of issuing a certificate in respect of the instrument is curtailed by the proviso and under proviso (c) the Collector is not authorised to endorse the payment of a duty on a bill of exchange or promissory note. The legal fiction embodied in Section 32 under which a document is deemed to be duly stamped is restricted in the case of documents other than those which are excepted under the provisos (a), (b), (c) and (d) to the section. The rule of interpretation is that a legal fiction is to be limited to the purpose for which it was created and should not be extended beyond that legitimate field. Legal fiction is created only for some definite purpose (See Bengal Immunity Co. Ltd, v. State of Bihar : 2SCR603 . The effect of a proviso is to carve out an exception to the main provision to which it has been enacted as a proviso. It is also well settled that if the language of an enactment is clear and unambiguous it would not be legitimate for the Courts to evolve therefrom some sense which may be said to carry out the supposed intention of the legislature. The intention of the legislature is to be gathered only from the words used by it. The State of Rajasthan v. Mrs. Leela Jain, AIR 1835 SC 1296, it was laid down that:
'Unless the words are unmeaning or absurd, it would not be in accord with any sound principle of construction to refuse to give effect to the provisions of a statute on the very elusive ground that to give them their ordinary meaning leads to consequences which are not in accord with the notions of propriety or justice entertained by the Court.'
10. Proviso (c) to Section 32 mentions that nothing in this section shall authorise the Collector to endorse meaning thereby that the authority of endorsement conferred under Section 32 is expressly prohibited to be exercised in respect of the bills of exchange and the promissory notes. A mere reading of Section 32 would, therefore, go to show that the Collector has no jurisdiction to make an endorsement over instruments covered by the proviso which includes the Hundis in suit. The next question for determination would, therefore, be if in spite of the prohibition the Collector makes an endorsement, what would be the effect of the said endorsement. The endorsement obviously would be without jurisdiction and a nullity. Rameshur Singh v. Sheodin Singh, (1890) ILR 12 All 510 (FB), which has been relied upon by the learned counsel for the opposite party lays down that:
'As a principle of the interpretation of statutes, a distinction must be drawn between cases in which a Court or an official omits to do something which a statute enacts shall be done, and cases in which a Court or an official does something which a statute enacts shall not be done. In the former case, the omission may not amount to more than an irregularity in procedure. In the latter, the doing or the prohibited thing is ultra vires and illegal, and therefore without jurisdiction'.
11. In Kiran Singh v. Chaman Paswan : 1SCR117 , it was laid down that:
'A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the section, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.'
12. The endorsement of the Collector, therefore, over the Hundis in suit being without jurisdiction, could not be of any help to the applicant and the legal fiction embodied in Section 32 will not be available in respect of the endorsement which has been made in spite of the prohibition contained in the proviso to the section itself. Section 35 lays further support to the above said interpretation. The admissibility or inadmissibility of a document is provided in Section 35 and under the above Section also a document, which is not duly stamped, can be admitted in evidence on payment of the requisite duty and the penalty provided therein, but here also an exception is made in the case of a receipt bill of exchange or promissory note, etc. The policy of the Act as revealed by the wording of Sections 32 and 35 is that documents other than those which are exempted under the proviso can be the subject of a certificate of the Collector before they are presented in a Court and can also be admitted in evidence on payment of the required stamp duty and the penalty. But the documents which are exempted by the proviso under Section 32 or 35 cannot be the subject-matter of a certificate of the Collector and will remain inadmissible in evidence. Section 41 of the Stamp Act authorises the Collector to receive the deficit stamp duty in cases of instruments which are unduly stamped by accident. Section 41 is in the following words:
'41. Instruments unduly stamped by accident -- If any instrument chargeable with duty and not duly stamped, not being an instrument chargeable with a duty not exceeding twenty naya Paise only or a bill of exchange or promissory note, is produced by any person of his own motion before the Collector within one year from the date of its execution or first execution and such person brings to the notice of the Collector the fact that such instrument is not duly stamped and offers to pay to the Collector the amount of the proper duty or the amount required to make up the same, and the Collector is satisfied that the omission to duly stamp such instrument has been occasioned by accident, mistake or urgent necessity, he may, instead of proceeding under Sections 33 and 40, receive such amount and proceed as next hereinafter prescribed.'
Under this section also the authority of the Collector is excluded in respect of the bill of exchange and promissory notes, etc. The case of (1881) ILR 3 All 115 (supra), was a case under Act 18 of 1869. In that case, the instrument in suit was held not to be a promissory note, but a bond, by the trial Court. When the case came up to the High Court, the High Court, without deciding whether the instrument was a bond or a promissory note, remarked that assuming the document was a promissory note, yet the act of making an endorsement was a mere irregularity and if any party was aggrieved by the order of the Collector, an appeal lay against the order of endorsement and, therefore, the endorsement could not be questioned in the present case. Section 39 of Act XVIII of 1869 was in these words:
'When any instrument chargeable with stamp duty under this Act, whether previously stamped or not, is brought to the Collector, and the person bringing it desires to have the opinion of that officer as to the duty with which it is so chargeable, and pays a fee of five rupees, the Collector shall assess and charge the duty to which, in his judgment, the instrument is liable; and upon payment of such duty or of such a sum as, with the duty already paid thereon, is equal to the duty so assessed and charged, and of the penalty, if any, incurred through the instrument having been executed on insufficiently stamped paper, shall certify by endorsement on such, instrument that the full duty with which it is chargeable under this Act has been paid.
The instrument shall thereupon be deemed to be duly stamped and shall be receivable in evidence or otherwise in all courts and public offices as if originally executed on paper bearing the proper stamp:
Provided that nothing contained in the former part of this section shall authorise the Collector to make any such endorsement on bills of exchange, promissory notes or instruments chargeable with the stamp duty of one anna when brought to him on unstamped or insufficiently stamped paper subsequent to the drawing or execution thereof,'
Under the proviso to Section 39 of the old Act as well the jurisdiction of the Collector was excluded in respect of bills of exchange and promissory notes etc. With due respect to the Hon'ble Judges who decided Girdhari Das's case, (1881) ILR 3 All 115 (supra) we are unable to follow it. The observations in Tukaram's case, (1911) 10 Ind Cas 702 '(Nag) of the Nagpur Judicial Commissioner's Court also being against the express provision of Section 32 cannot be accepted. The facts of Madras case AIR 1942 Mad 381 were quite different. In that case the certificate granted by the Collector on a separate piece of paper was claimed as a valid certificate of endorsement but the High Court negatived the plea. The general observation of the Hon'ble Judge that an endorsement by the Collector is final was obiter and against the express provisions of the statute. The case of (1882) 9 Cal LR 272 was not a case of bill of exchange and, therefore, is distinguishable from the facts of the present case. In Dattatraya Moreshwar's case : 1952CriLJ955 , their Lordships of the Supreme Court were considering whether it was essential or not under Section 11(1) of the Preventive Detention Act, 1950 that the authority should specify the period of continuation of detention and whether the non-specification of such period at the time of confirming the decision will not make the detention order a nullity. It was in that context that it was laid down that when the provisions of a statute relate to the performance of a public duty and the neglect of that duty would work serious general inconvenience, the practice of the Courts had been to hold that such provisions were directory and the neglect would not affect the validity of the acts done. The public duty, if any, in the present case was that the Collector had no jurisdiction to grant a certificate in respect of the bills of exchange. A statutory prohibition differs from the performance of a duty which by the neglect of the officer remains unperformed. In AIR 1969 SC 1238, the instrument to be interpreted was an award and not a bill of exchange : AIR1963AP457 , on which reliance has been placed by the learned counsel for the opposite party supports him fully and lays down that:
'Proviso (a) to Section 35 is absolute in its terms and there is no question of any exception being made in favour of a promissory note if it bears a stamp of improper description. As proviso (a) expressly forbids the Collector to validate an unstamped promissory note, the order of the Collector validating such an instrument cannot have any legal effect; and it cannot bind the civil court. The promissory note can-not therefore, be held to be admissible in evidence for any purpose under Section 35.'
13, Anoop Chand v. Nathmal on which reliance has been placed by the opposite party supports the opposite party's contention that the promissory note which is improperly stamped is not admissible in evidence.
14. For the reasons given above, we are of the opinion that the endorsement of the Collector, being without authority, the Hundis in suit could not be deemed to be duly stamped and as such they were not admissible in evidence and the finding of the learned Civil Judge was right. This revision, therefore, has no force and is accordingly dismissed with costs.