DALTON J.—Wijeyesekere v. Commissioner of Stamps.
1932Present: Dalton J. and Jayewardene A.J.
WIJESEKERE v. COMMISSIONER OF STAMPS.
D. C. (lnty.) 187 (Stamps).
Stamps—Election petition—Bond given as security for respondent’s costs■—Recognizance in favour of King—Exemption—Stamp Ordinance 1909,s. 32.
A recognizance in favour of the King given in the form set out in.rule 16 of schedule VI. of the Ceylon (State Council Elections) Order inCouncil, 1931, is liable to stamp duty.
PPEAL from a decision of the Commissioner of Stamps.
Appellant in person.
Basnayaka, C.C., for respondent.
May 18,1932. Dalton J.—
This is an appeal under the provisions of section 32 of the StampOrdinance, 1909, against the determination of the Commissioner ofStamps that the bond filed by the appellant, as petitioner in an electionpetition, is liable to stamp duty. At the time of the presentation of hispetition, appellant gave security for all costs, charges, and expenses towhich the petitioner may become liable, in terms of rule 12, schedule VI.,of the Order in Council, 1931, but states he did not stamp it, as it wasexempted from stamp duty under the provisions of section 4 of the StampOrdinance. Security was given in the form of recognizance set out inrule 16 of schedule VI., the principal and sureties being bound to “ OurSovereign Lord the King ”.
It is conceded by appellant, and it is clear, that the- instrument isliable to duty under the tariff set out in the schedule, unless there is anexemption in section 4 of the Ordinance. The section that appellanturges exempts him from duty is as follows: —
Provided that no duty shall be chargeable in respect of—
Any instrument executed by, or on behalf of, or in favour of, theGovernment, in cases where, but for this exemption, theGovernment would be liable to pay the duty chargeable inrespect of such instrument:
He urges that this is an instrument in favour of the Government in asmuch as he is bound by it to Our Sovereign Lord the King. If theproviso ended at the word “ Government ” there might possibly be' something in his argument, but it is not necessary to consider that.The terms of the proviso are quite clear, and will be found in most revenueordinances of this kind, to avoid the Government taking money out ofone pocket merely to put it into another. Appellant has to show, beforethe exemption can apply, that the Government would be liable to paythe duty chargeable in respect of this instrument but for this exemption,,and that he is unable to do. This point has already been decided in
336 JAYEWARDENE A,J.—Wijeyesekere v. Commissioner of Stamps.
Peries v. Saravanantuttuwhere Drieberg J. held that such a recognizanceas we have here was liable to duty. He deals with the provisions ofsection 4 of the Stamp Ordinance in the course of his judgment.
Appellant urges that that decision is not binding on this Court, that thelearned Judge was assuming a jurisdiction which he did not have, as hewas sitting as an election petition Judge whose powers were strictly limitedby the terms of Part VI. of the Order in Council, and lastly, if he wassitting as a Judge of the Supreme Court and not as an election petitionJudge, he had no jurisdiction to hear the matter sitting alone. Theappellant is correct on the first point, but with regard to that I can onlysay I have come to the same conclusion as the learned Judge after hearingthe argument before us. The second and third points, therefore, it is notnecessary to decide, since I am satisfied the instrument is liable to duty.I might, however, point out that under the Order in Council all inter-locutory matters in connection with an election petition may be dealtwith and decided by any Judge of the Supreme Court, unless otherwiseordered by the Chief Justice.
The appeal fails, and must be dismissed with costs.
I agree. I would add that the same objection was taken in the petitionre the By-election for the Northern Province". Ennis A.C.J. after con-sidering the effect of several sections of the Stamp Ordinance said—
“ The present recognizance is an undertaking to pay the costs andcharges of the petition in a certain event, and it purports tobe a recognizance with sureties, as such it would seem thatit should be stamped.”
The learned Judge, however, did not decide the question because hedesired to hear the Attorney-General and because he was upholdinganother objection. I agree with Drieberg J. in Peries v. Saravanamuttua,where the matter has been carefully considered, that there is no exemptionfrom stamp duty in the case of an instrument in .favour of the Govern-ment where the duty is not payable by the Government, and in the caseof a bond under section 28 of the Stamp Ordinance the duty is payableby-the person executing the bond.
*33 N. L. R. 220.
2 33 N. L. R. ~'S7.
J 33 N. L. R. 229.