050-NLR-NLR-V-33-COMMISSIONER-OF-STAMPS-v.-FERNANDO-et-al.pdf
190
AKBAR J.—Commis8ioner of Stamps v. Fernando.
1931Present: Akbar J.
COMMISSIONER OF STAMPS v. FERNANDO et al
[In Revision.]
P.C. Negombo, 71,917.
Stamp Ordinance—Stamp duty on mortgage bond—Liability of mortgagors
Money paid to notary—Ordinance No. 19 of 1909, ss. 28 and 250.
Where a mortgage bond has not been duly stamped, the mortgagors
are not relieved of their liability to pay the duty under section 28 of theStamp Ordinance, merely because theyhaveprovided the attesting
notary with money to buy the necessary stamps.
In such a case the stamp duty may be recovered by the Commissionerof Stamps under section 50 of the Ordinance.
Section 50b of the Stamp Ordinance, 1909, as amended by OrdinanceNo. 18 of 1980, has no retrospective effect.
A
PPEAL from an order of the Police Magistrate of Negombo uponan application of the Commissioner of Stamps to recover from
the respondents of a sum of Rs. 229, being the stamp duty and the penaltypayable on a mortgage bond executed by them.
j. E. M. Obeyesekere, C.C., for Commissioner of Stamps.
E. C. F. J. Senanayake, for respondents.
1 1N. L. R. 292.
* 21 N. L. R. 20$.
AKBAR J.—Commissioner of Stomps o. Fernando.
191
October 27, 1931. Akbar J.—
In this case the Commissioner of Stamps applied under section 50of the Stamp Ordinance, 1909, for the recovery from the respondentsof n sum of Rs. 229. being deficiency of stamp duty and penalty due upona deed No. 2,001 dated October 16. 1929, and attested by the lateMr. H. P. Weerasuriya, Notary Public. This application was refusedby the Police Magistrate on several grounds. The first ground was thatthe stamp duty in question had been paid by the respondents to theattesting notary. It is true that one of the two respondents paid sufficientmoney for the stamp duty to the notary, and the deed produced statesthat -stamps to the value of Rs. 204 had been affixed to the duplicateand a stamp of Re. 1 had been affixed to the original of the deed. Butit is clear from the document produced that it bears no trace of anystamp on it. There can be no question that P 1, the document produced,is the duplicate because the Commissioner of Stamps has produced formy inspection the protocol copy marked A. The document P 1 had beensigned by the two respondents and at the time that they signed the deedit is clear that the document bore no stamps. The fact that the respond-ents paid money sufficient for the stamps to the notary is no excusefor their signing the document unstamped. Under section 28 of the StampOrdinance, in the case of mortgagee bond, the stamp duty has to be paid bythe mortgagers, i.e., the respondents. Under section 16 of the Ordinanceany instrument chargeable with duty shall be stamped before or at the timeof the execution. Under section 58 any person executing or signing anyinstrument chargeable with duty without the stamp being dulystamped commits an offence thereunder. Therefore it was the dutyof the respondent to see that the document P 1 was properly stampedbefore they signed it. Under section 9 it was the duty of the respondentsfurther to have cancelled the stamps. In my opinion the Commissionerof Stamps under section 50 was entitled to ask that the stamp duty berecovered from the respondents. The second ground upon which thelearned Police Magistrate refused the application was that there was noproof that the document P 1 was the duplicate. As I have alreadypointed out there can be no doubt of this, because the production of theprotocol copy and the fact that the original must be with the mortgageeshow that the document produced was the duplicate. The third groundupon which the Commissioner refused the application was that thedocument had not come before the Commissioner of Stamps in the mannerprovided by law. Here, too, I think the Police Magistrate was wrongbecause the duplicate was sent under section 35 of the Nortaries Ordinance,1907, as amended by Ordinance No. 27 of 1909, as that section imposesan obligation on the heirs of the deceased notary to deliver all deedsto the Registrar of Lands. The Registrar of Lands under section 33of the Stamp Ordinance, No. 22 of 1909, impounded the deed and undersection 39 (2) the- Registrar of Lands sent .the document impoundedto the Commissioner of Stamps: The last ground on which the learnedPolice Magistrate dismissed the application .was that in his opinionaction should have been taken under section 50b of the Stamp Ordinance,as amended by section 5 of Ordinance No. 18 of 1930, Now this OrdinanceNo. 18 of 1930 came into force on November 9, 1930; as the mortgage
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192
AKBAR J.—Commissioner of Stamps v. Fernando.
bond, P 1, is dated October 16, 1929, Ordinance >?o. 18 of 1930 could haveno application retrospectively unless there is a clear indication eitherfrom the subject-matter or from the wording of the Ordinance that it isto have retrospective effect. In my opinion section 50b cannot have aretrospective effect (see Pardo v. Bingham1). It is an extension of thelaw creating a new liability and cannot affect the rights and duties ofparties which existed previous to the passing of the Ordinance. In myopinion the judgment of the learned Police Magistrate was wrong and1 wculd set it aside and direct him to recover the sum of Rs. 229 undersection 50 of the Stamp Ordinance from the respondents as if it were*a fine imposed by the Police Magistrate.
Set aside. i
i (1869) L. R. 4 Oh. App. p 736.