008-NLR-NLR-V-07-COLURAAD-v.-ROGEE.pdf
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1902.
COLUBAAD v. ROGEE.
B., Colombo, 17,452.
Unstamped instrument—Ordinance No. 8 of 1890, s. 85—Promissory note bearing'judicial stamp instead of revenue stamp—Power of Court to order theremedying of the mistake.
In an action upon a promissory note found to bear a judicial stamp-instead of a revenue stamp it is open to the Court, where the revenuehas not been defrauded and the mistake had occurred from inadvertence,to give him the benefit of section 35 of the Ordinance No. 3 of 1890 bygranting time to the plaintiff to remedy the mistake and then receiving,it in evidence.
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HE facts of the case and the arguments of counsel appear inthe judgment of Moncreiff, J. The appeal taken by the
plaintiff was argued on 1st September, 1902.
Elliot, for appellant.
Schneider, for respondent.
1st September, 1902. Moncreiff, J.—
This was an action upon a promissory note. On the lltbDecember, 1901, the plaintiff moved for judgment in the absenceof the defendant. It was then found that the note bore a judicialand not a revenue stamp, but the Commissioner, considering thatthe revenue had not been defrauded, and that the mistake hadoccurred from inadvertence, granted the plaintiff two weeks’ timeto remedy the mistake. On the following day it was intimatedthat the defendant had cause to show against the order; and onthe 16th December Mr. Schneider appeared on behalf of the de-fendant, and so far prevailed with the Commissioner as to inducehim to rescind the order which he had made granting the plaintifftwo weeks’ time to rectify the stamping of the promissory note.
The plaintiff appeals, and refers me to section 35 of OrdinanceNo. 3 of 1890, which provides “ that fwhere an instrument liableto stamp duty is found to be unstamped or not duly stamped, itshall not be received, in evidence until (if the instrument is onewhich, may legally be stamped after the execution thereof) thewhole or the deficiency of the stamp duty payable thereon, as thecase may be, and the penalty required by this Ordinance togetherwith an additional penalty of Rs. 5, shall have been paid intoCourt.” Now, the plaintifE says his case is'covered by that section.The note .bearing a judicial stamp instead of a revenue stamp is-in my opinion not duly stamped. Mr. Schneider referred me to
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the 8th section of the Ordinance. That section, however, is not a 1902.definition of instruments which are unduly stamped. It provides September 1.that in the category of unduly stamped instruments shall be iJoNObeiffincluded those which do not bear a stamp showing the proper J.amount of stamp duty, and in the case of adhesive stamps where-there are certain defects with regard to the cancellation of them,,unless it is otherwise proved that the stamp was affixed at theproper time; but it does not mean that an instrument may notbe unduly stamped in respect of other defects. Then Mr..
‘Schneider says that this was a case in which the instrumentcould not be stamped after the execution thereof; but nothingin the Ordinance is quoted to support that position, whereas, on-the other hand, Mr. Elliott produced more than one authority,notably, the cases of Boiling v. Saverimuttu (I S. C. B. 313) andThe Chartered Mercantile Bank v. Sadayappa Chetty (2 C. L. B.
53), in which it was distinctly stated that the Commissioner hadpower where an instrument unduly stamped was tendered inEvidence to allow the plaintiff the benefit of section 35 of theStamp Duties Ordinance.
Another argument put forward by Mr. Schneider was that theplaintiff could have availed himself of section 19 of the Ordinanceand brought the instrument to the Commissioner to be stampedwithin fourteen days of the date thereof, that that was his proper-remedy, and that as he has not availed himself of it he cannotnow lay claim to a remedy which is not strictly appropriate to-his case. No doubt he might have proceeded under that sectionbut in my opinion that section does not exclude him from suchother relief as the Ordinance allows him.
I think the Commissioner was wrong in thinking that he hadnot the power to make the order of the 12th December. I thinkhe had power to make it; and as it is the order which he desiredto make which he did make, and which he only cancelledbecause he thought he had made it without having statutorypower to do so, I think it ought to be revived and the order-appealed from set aside.
The case must go back for trial upon the other issues—uponthe plaintiff’s satisfying the law with regard to the stamp on thenote.