IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 WP(C).No. 6323 of 2010(O) ------------------------- OS.62/2004 of SUB COURT, MAVELIKKARA .................... PETITIONER(S): --------------- SREEKUMAR, AGED 35 YEARS, S/O.GOPALAKRISHNAN NAIR, RADH BHAVAN, PALLARIMANGALAM MURI, THEKKEKARA VILLAGE. BY ADV. SRI.B.RENJITHKUMAR RESPONDENT(S): --------------- 1. MAYA, AGED ABOUT 46 YEARS,W/O.LATE MADHU, MARUTHANADIYIL, ERUVA EAST, PATHIYOOR VILLAGE. 2. MANJU AGED ABOUT 21 YEARS, D/O.MAYA, MARUTHANADIYIL, ERUVA EAST, PATHIYOOR VILLAGE. 3. MANUMOL AGED ABOUT 20 YEARS,D/O.MAYA, MARUTHANADIYIL, ERUVA EAST, PATHIYOOR VILLAGE. 4. MONU AGED ABOUT 16 YEARS, D/O.MAYA, MARUTHANADIYIL, ERUVA EAST, PATHIYOOR VILLAGE. (MINOR REPRESENTED HEREIN BY THE MOTHER IST RESPONDENT HEREIN) 5. USHA RAMACHANDRAN.S, AGED ABOUT 5O YEARS MANGALASSERIL, ERUVA EAST, PATHIYOOR VILLAGE. ADV. SMT.S.L.SYLAJA FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.6323/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN OS 62/2004 ON THE FILE OF SUB COURT, MAVELIKKARA EXT.P3 TRUE COPY OF AGREEMENT DATED13.3.2001 EXECUTED BY THE SAID MADHU IN FAVOUR OF THE PETITIONER EX.P3 TRUE COPY OF THE ORDER DATED 8.1.2010 IN OS 62/2004 OF SUB COURT, MAVELIKKARA //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.6323 of 2010 -------------------------------------- Dated this the 7th day of June, 2010. JUDGMENT Interpretation of Ext.P2 made by learned Sub Judge, Mavelikkara is under challenge in this Writ Petition at the instance of plaintiff in the suit. According to the petitioner/plaintiff, he was an unemployed youth and was offered a job by one Madhu on condition of payment of Rupees seven lakhs. In connection with that, petitioner paid Rs.1,75,000/- to the said Madhu on 13.03.2001. It is his further case that as security for due re-payment of the said amount Ext.P2, agreement was executed by the said Madhu in his favour. For realisation of the said amount, petitioner instituted O.S.No. 62 of 2004 in the court of learned Sub Judge, Mavelikkara against respondent Nos.1 to 4 who are legal representatives of said Madhu and respondent No.5/defendant No.5, Head Master of the school where petitioner was allegedly offered job. When the case came up for trial, marking of Ext.P2 was objected by respondents on the ground that it is a “bond” liable for stamp duty and penalty accordingly. Learned Sub Judge has held that Ext.P2 is a 'bond' as defined in Section 2(a)(ii) of the Kerala Stamp Act (for short, “the Act”) vide Ext.P3, order. That order is under challenge in this Writ Petition. Learned counsel for petitioner contends that Ext.P2 is only an agreement as per which Madhu had agreed to repay the amount he had received from the petitioner. Ext.P2 does not create any liability and it only recognized the pre-existing liability of the said Madhu, WP(C) No.6323/2010 2 predecessor-in-interest of respondent Nos.1 to 4. Reliance is placed on the decision in Radha v. Sankaranarayanan (2007 (1) KLT 20). Learned counsel for respondents per contra contend that there was no pre-existing liability, Ext.P2 created liability and hence it is a bond as defined in Section 2 (a)(ii) of the Act. 2. Section 2(a)(ii) of the Act defines a 'bond' thus “(a) “bond” 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;” Question is whether Ext.P2 satisfies that definition. In Ext.P2, it is stated that Madhu, predecessor-in-interest of respondent Nos.1 to 4 agreed to repay the sum of Rs.1,75,000/- received from petitioner in the manner stated therein. In Radha v. Sankaranarayanan (supra) it is held that a document whereunder the executant undertakes to repay the amount borrowed earlier within the period provided is an agreement and not a bond. Reliance is placed WP(C) No.6323/2010 3 on the decision in State of Kerala v. Mc Dowell & Co. Ltd. (1994 (1) KLT 802) where in paragraph No.20, it is stated that “............ If the executant can be sued for that sum of money only upon the strength of the instrument, the instrument is a bond”. According to the learned counsel for petitioner, even in the absence of Ext.P2 it was possible for petitioner to sue the respondents provided he could prove his case by other evidence. 3. To become a bond, the document must create a liability for the first time. If the document only evidences a pre-existing liability, it is not a 'bond'. (see Mathai Mathew v. Kochukutty Thampi (1989 (1) KLJ 535). The question was considered by the Supreme Court in Jiwanlal Achariya v. Ramesh Warlal Agarwalla (AIR 1967 SC 1118) though with reference to the Bihar Money Lenders (Regulation of Transactions) Act where the Act did not contain a definition for the expression “bond”. It is held that the word 'bond' is used in its general sense, ie. a deed by which one person binds himself to pay sum to another person. Reference was made to the decision in Surendra Prasad Narain Singh v. Sri Gajadhar Prasad Sahu Trust Estate and others (AIR 1940 FC 10) where Sulaiman, J. stated that the essential common feature of a bond and agreement is that as per 'bond' a person obliges himself to do the act mentioned therein and that language of the instrument itself WP(C) No.6323/2010 4 must expressly create obligation. This Court considered the issue in West Coast Electroplating Co.Ltd. v. Sreedharan (1971 KLT 383). There, the distinction between a bond and agreement was considered. It was stated that in every case one has to look at the intention of the parties and if intention of parties is not to extinguish earlier obligation but to keep it alive and the document subsequently executed only provides for method of payment and for reduction of interest under certain contingency such a document is merely an agreement and not a bond. 4. I shall look at Ext.P2 in the light of above legal position. What is discernible from Ext.P2 is that Madhu, predecessor-in-interest of respondent Nos.1 to 4 had received (may be on the same day or even immediately before execution of Ext.P2) Rs.1,75,000/- and he agreed to repay the said amount with interest as and when demanded by petitioner. Going by Ext.P2 it is not as if obligation to pay the amount is created on the said Madhu for the first time as per Ext.P2. Original transaction is the receipt of money from petitioner. Ext.P2 only evidences liability of Madhu to repay the amount in the manner stated therein. As held in West Coast Electroplating Co.Ltd. v. Sreedharan (supra) the intention of the parties to Ext.P2 was to make the said Madhu liable to repay the amount received by him in the manner stated therein. As such it cannot be said that as per Ext.P2 obligation to pay amount was created on the said Madhu for the first time and hence it came within the mischief of Section (a)(ii) of the Act. 5. Yet another way of looking at Ext.P2 is as held by the Supreme WP(C) No.6323/2010 5 Court in State of Kerala v. Mc Dowell & Co. Ltd. (supra). Assuming that petitioner is able to prove even otherwise than by Ext.P2 that Madhu had received Rs.1,75,000/- from him, legal representatives of the said Madhu (respondent Nos.1 to 4) are liable though may not be personally. Respondent No.5 is arrayed as defendant in the suit in her capacity as Treasurer and Manager of the school where Madhu had offered employment for petitioner and in connection with that, allegedly received the amount. Hence also it cannot be said that but for Ext.P2, petitioner is not entitled to get relief from respondents (if otherwise they are proved liable). In the circumstances view taken by the learned Sub Judge that Ext.P2 is a bond and directing payment of stamp duty and penalty cannot be accepted. Ext.P2 is only an agreement and hence liable to stamp duty accordingly. Resultantly, this Writ Petition is allowed and Ext.P3 order holding that Ext.P2 is a bond is set aside. I hold that Ext.P2 is only an agreement for re- payment of the amount and liable for stamp duty accordingly. THOMAS P.JOSEPH, Judge. cks