1.This is a reference under Section 57 of the Indian Stamp Act, 1899 (hereinafter referred to as 'the Act'), made by the Board of Revenue by its order dated 8th Dec, 1980.
2. The material facts giving rise to this reference briefly are as follows:--
Non-applicant Ishwardas s/o Daulatram filed a civil suit against applicant Hasan Khan S/o Jamal Khan for recovery of the amount due on the promissory note alleged to have been executed by Hasan Khan on 5th June, 1972. Stamps worth forty paise were affixed to the promissory note. A preliminary objection was raised on behalf of Hasan Khan in the civil suit that the promissory note could not be admitted in evidence. The learned Civil Judge directed Ishwardas to get the document certified as duly stamped. Accordingly, non-applicant Ishwardas submitted an application before the Collector of Stamps, Badnagar to certify the promissory note as duly stamped under Section 37 of the Act. The Collector of Stamps directed that since refugee relief stamps were not available, the non-applicant Ishwardas should pay ten paise in the treasury and produce necessary proof in that behalf so that the instrument could be certified as duly stamped. Aggrieved by the order of the Collector of Stamps, the applicant Hasan Khan approached the Board of Revenue and prayed that the matter be referred to this Court under Section 57 of the Act The Board of Revenue has accordingly referred this matter to us with its opinion that the promissory note in question could be certified as duly stamped under Section 37 of the Act.
3. Shri Mehta, learned counsel for the applicant Hasan Khan, contended that the requirement about payment of additional stamps was imposed by Section 3A of the Stamp and Excise Duties (Amendment) Act, 1971, and that Section 37 of the Act was not attracted in the instant case.
4. Before we proceed to appreciate the submissions made on behalf of tbe applicant, it would be useful to turn to the relevant provisions of the Act. By Section 2 of the Stamp and Excise Duties (Amendment) Act, 1971, Section 3-A was inserted in the Act. That provision was an follows :--
'3-A. Instruments chargeable with additional duty.-- (1) Every instrument chargeable with duty under Section 3 read with Articles Nos. 13, 14, 27, 37, 47, 49, 52, 53 or 62 (a) of Schedule I shall, in addition to such duty be chargeable with a duty of ten paise.
(2) The additional duty with which any instrument is chargeable under Sub-section (1) shall be paid and such payment shall be indicated on such instrument by means of adhesive stamps bearing the inscription 'refugee relief whether with or without any other design, picture or inscription.
(3) Except as otherwise provided in Subsection (2), the provisions of this Act shall, so far as may be, apply in relation to the additional duties chargeable under Sub-section (1) in respect of the instruments referred to therein as they apply in relation to tbe duties chargeable under Section 3 in respect of those instruments.'
In view of the aforesaid provision, the promissory note in question, which was executed on 5-6-1972 when the aforesaid amending Act was in force, should have been stamped in addition to adhesive stamps worth twenty-five paise, with adhesive stamp worth ten paise bearing the inscription 'refugee relief. The promissory note was however, stamped with adhesive stamp worth forty paise. It was thus a case of an instrument bearing stamp of sufficient amount but of improper description. Section 37 of the Act reads as under :--
'37. The State Government may make rules providing that, where an instrument bears a stamp of sufficient amount but of improper description, it may, on payment of the duty with which the same is chargeable, be certified to be duty stamped, and any in- strument so certified shall then be deemed to have been duty stamped as from the date of its execution.'
5. It was not disputed before us that in exercise of tbe aforesaid powers the State Government have made rules and the Collector of Stamps has acted in pursuance of these rules. The contention advanced on behalf of the applicant that the provisions of Section 37 of the Act were not attracted in the case of an instrument required to be stamped in accordance with the provisions of Section 3-A, as amended, cannot be upheld. There is nothing in the language of Section 3-A or of Section 37 of the Act, to exclude the operation of Section 37 of the Act to a case where stamps of sufficient amount, but not of that description as was required by Section 3-A of the Act, were affixed. In our opinion, on the facts and in the circumstances of the case, the Collector of Stamps, was right in holding that the provisions of Section 37 of the Act were attracted and he had jurisdiction to certify the promissory note as duly stamped, in accordance with the provisions of Section 37 of the Act
6. The reference is answered accordingly. Parties shall bear their own costs of this reference. The Registry shall arrange to send a copy of this Order to the Board as required by Section 59 of the Act.