IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 13TH JANUARY 2010 / 23TH POUSHA 1931 WP(C).No. 31409 of 2008(L) -------------------------- OS.50/2007 of SUB COURT, KASARAGOD .................... PETITIONER(S): ------------------------- M/S.CHANDRAGIRI CONSTRUCTION COMPANY, THEKKIL, KASARAGOD, REGISTERED FIRM REPRESENTED BY MANAGING PARTNER, T.B.KUNHIMAHIN HAJI, 65 YEARS. BY ADV. MR.M.NARENDRA KUMAR RESPONDENT(S): --------------------------- K.A.ABDULLA, AGED 42 YEARS, S/O.K.M.KUNHAMAD, NISHA MANZIL, IRSHAD NAGAR, KOPE, MUTTTHODY PO., MUTTTHODY VILLAGE, KASARAGOD TALUK. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/01/2010 ALONG WITH WPC NO. 31427 OF 2008, WPC NO. 31488 OF 2008 AND WPC NO. 4142 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.31409/2008 L APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.NO.50/2007 IN THE SUB JUDGE, KASARAGOD. P2: COPY OF THE AGREEMENT DTD. 11/07/2001. P3: COPY OF THE ORDER DTD. 15/10/2008 IN O.S.NO.50/2007. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).Nos.31409(L), 31427(N) & 31488 of 2008(W) and 4142 of 2009(R) --------------------------------- Dated this the 13th day of January, 2010 J U D G M E N T Common petitioner in all the above four writ petitions is a company which is represented by its managing partner. The above petitioner instituted four suits against its tenants in occupation of four shop rooms situate in a multi storied building in Kasargode town. Three of the above suits are pending before the Sub Court, Kasargode and one of them before the Munsiff Court, Kasargode. To substantiate the rental arrangement in each case the plaintiff-company produced document, which, according to it is an agreement to lease, written in a stamp paper for Rs.50/- duly subscribed by the tenant as having agreed to the terms and conditions of the lease arrangement. When the suits came up for trial and these documents were tendered to prove the lease arrangement an objection was raised by the defendants in the respective suits that the agreements are insufficiently stamped. Though the petitioner-company contended the W.P.(C).No.31409 of 2008 & conn. cases 2 documents are only agreements to lease rejecting that contention the respective courts passed impugned orders produced in the respective writ petitions directing for impounding the documents and payment of the deficit stamp fee and penalty as contemplated under Article 33 of the Stamp Act. Order so passed by the two courts, Sub Court and Munsiff Court, in the respective suits are challenged in the writ petitions. Since common questions of law and facts are involved, after being heard together, they are disposed by this common judgment. 2. Though notice was given to the respective respondents, none of them has entered appearance. I heard the learned counsel for the petitioner. 3. At the time of hearing, confining his submissions to Section 37 of the Kerala Stamp Act and placing reliance on two decisions of the apex court in Peteti Subba Rao v. Anumala S. Narendra (2002(10) SCC 427) and Chilakuri Gangulappa v. Revenue Divisional Officer, Madanpalle and Another (2001 (4) SCC 197) the learned counsel for the petitioner sought indulgence of this Court for sending over the documents to the W.P.(C).No.31409 of 2008 & conn. cases 3 District Collector as provided under Section 37(2) of the Stamp Act for fixing of the deficit stamp fee and also penalty to validate the documents and rendering it admissible for evidence. If such a course is adapted, according to the counsel, petitioner can seek for remission in the matter of penalty from that statutory authority which is competent to fix penalty taking note of the facts and circumstances involved. I find the plea so canvassed deserve consideration. It has also been brought to my notice that the order passed by the learned Sub Judge in O.S.No.51 of 2007 which is impeached in W.P.(C).No.31488 of 2008 relate to a photocopy of the agreement produced over which no order for payment of deficit stamp fee and penalty and of impounding of document can be made under law. My attention has also been invited to Hariom Agarwal v. Prakash Chand Malviya (2007 (8) SCC 514) to contend that an instrument as defined under Section 2(J) of Kerala Stamp Act, which could be proceeded on the ground of deficiency of stamp fee, should be the original instrument and not a photocopy. I find the counsel is well founded in raising such an objection impeaching the correctness W.P.(C).No.31409 of 2008 & conn. cases 4 of the order passed for impounding the document, a photocopy of an original instrument produced in the case as ordered by the learned Sub Judge. So much so, the order impugned in W.P.(C). No.31488 of 2008 passed by the learned Sub Judge ordering deficit stamp fee and payment of penalty and impounding of the photocopy of the agreement produced shall stand set aside. So far as the orders challenged in the other writ petitions, such orders to the extent of directing payment of deficit stamp fee and penalty shall stand set aside retaining the order for impounding the documents produced for the reason of insufficiency of stamp fee. Those documents in original shall be sent over to the Collector for being proceeded under Section 39 of the Kerala Stamp Act as provided under Section 37(2) of the above Act. In the above three suits, the respective courts are also directed to keep in abeyance further proceedings for a period of three months after sending over the documents for imposing penalty impounding as indicated above to the District Collector to provide a reasonable opportunity to the plaintiff to re-produce them after adjudication by the statutory authority. After expiry of the above W.P.(C).No.31409 of 2008 & conn. cases 5 period the court shall dispose the suit whether or not documents are produced after adjudication. The suit O.S.No.51 of 2007 on the file of the Sub Court covered by W.P.(C).No.31488 of 2008 shall be proceeded and disposed in accordance with law. The other three suits covered by the other writ petitions shall be dealt with and disposed as indicated above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-