123-NLR-NLR-V-40-CORNELIS-APPUHAMY-v.-KIRI-BANDA-et-al.pdf
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Cornells Appuhamy v. Kiri Banda.
1938Present: Poyser S.P.J. and Wijeyewardene J.
CORNELIS APPUHAMY v. KIRI BANDA et al.
162—D. C. Colombo, 7,569.
Stamp duty—Acknowledgment of debt—Document not given as evidence ofdebt—Liability to duty—Stamps Ordinance, No. 22 of 1909, Schedule B.,Part I., item 1., s. 36 (b).
In an action on a mortgage bond the plaintiff, in order to meet a pleaof prescription put forward by the defendant, sought to put in evidencea document signed by the defendant in which he acknowledged that theprincipal sum and interest from a certain date was due. Objection wastaken to the document on the ground that it should have been stampedunder item I., Part I., Schedule B of the Stamp Ordinance.
Held, that the document did not fall for duty under item I., Part I. ofSchedule B, as it. was not given with the dominant intent of supplyingevidence of a debt and that the document should have been admitted inevidence upon payment of a penalty, if any, under section 36 of theStamp Ordinance.
PPEAL from an order of the District Judge of Colombo.
J.E. M. Obeyesekere (with him S. W. Jayasuriya), for plaintiff, appellant,J. R. Jayawardana, for the defendant, respondent.
Cur. adv. vult.
WUEYEWARDENE J.—Comelts Appuhamy v. Kiri Banda.
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November 7, 1938. Wueyewardene J.—
The plaintiff instituted this action for the recovery of the principal andinterest due on a mortgage bond executed by the first defendant in 1920.The plaintiff further stated that the first defendant paid him all theinterest up to October 20, 1936. The second, third and fourth defendantswere made parties as they were puisne encumbrancers.
The first defendant filed answer stating that he received a loan ofRs. 200 on the bond and pleaded that the plaintiff’s claim was barred byprescription.
Before the hearing, the first defendant served certain interrogatorieson the plaintiff one of which was—
“ Do you hold any acknowledgment in writing from the first defend-ant to prove any payment or payments of interest made by him ?”
The plaintiff’s answer to that interrogatory was to the effect that heheld a writing of October 20, 1936, from the first defendant acknowledgingthe debt due and the interest as from October 20, 1936.
When the plaintiff was giving evidence in Court he sought to producethe document referred to in his answer to the interrogatory, mainly forthe purpose of meeting the plea of prescription. On an objection takenby the defendant’s Counsel under section 36 of “The Stamp Ordinance,1909 ”, the learned District Judge refused to admit the document inevidence and made the following order : —
“ This is undoubtedly an acknowledgment of a debt which is stamp-able with a stamp of 6 cents and in the terms of the provisions ofsection 36 of the Stamp Ordinance, No. 22 of 1909, the document isinadmissible in evidence. I hold that the document is not a receiptfalling within the exception contained in section 36 (b) of the StampOrdinance and therefore it cannot be admitted even on the payment ofa penalty ”.
After hearing the oral evidence in the case the District Judge held thatthe claim was prescribed and dismissed the plaintiff’s action with costs.
Mr. Obeyesekere who appeared in support of the appeal produced thedocument in question together with, a translation. This document ismarked Z and initialled by the Registrar of this Court and filed of record.The point that arises for consideration is whether this document is adocument stampable under Schedule B, Part 1, item 1 • of the StampOrdinance which refers to an—
a Acknowledgment of a debt amounting to Rs. 20 or upwards inamount or value written or signed by or on behalf of debtor in order tosupply evidence of such debt in any book (other than a banker’s passbook) or on a separate piece of paper when such book or paper is left inthe creditor’s possession ”.
Before rejecting a document of this nature it should be carefullyexamined with reference to surrounding circumstances to ascertainwhether it was given to supply evidence of the debt. (Mulji Lala v. LinguMdkaji')*"
> <2896) I. L. R. 21 Bombay 201.
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POYSER SJJ.—Ranasinghe v. Punchihamy.
In Ambica Dot Vyas v. Nityanud Singh Banerjee and Henderson JJ.held that the mere fact of a document being an acknowledgment of adebt within the meaning of section 19 of the Indian Limitation Act wouldnot make it liable to a stamp duty under the corresponding provisions ofthe Indian Stamp Act, and that other conditions were required to befulfilled one of which was that it should be intended to supply evidenceof a debt. (See also Chandick v. Damani ’.)
On a survey of the evidence led in the case I am satisfied that thedocument was not given with the dominant intent of supplying evidenceof the debt, and I hold that the document should have been admitted inevidence subject to the proof of its execution and the payment of a penaltyif any under section- 36 of the Stamp Ordinance.
I set aside the judgment of the District Judge and send the case backfor hearing de novo on the issues already framed and such other issues asmay be raised by the parties and accepted by the Judge. At such trialthe document referred to should be admitted in evidence (subject to thepayment of any necessary penalty) on the plaintiff proving its execution.
The plaintiff is entitled to the costs of this appeal. The costs of thetrial already held in the District Court and the costs of the fresh trial inthe District Court will be in the discretion of the District Judge.
Poyser S.P.J.—I agree.
Appeal allowed.
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