Karlhigesu Kurukkal v. Sarma.
1946 Present:Wijeyewardene S.P.J. and Jayetileke J.
KARTHIGESU KURUKKA L, Appellant, and SARMA, Respondent.
354-—D. C. Point Pedro, 2.
Evidence—Unstamped receipt—Admissibility against a person who derivestitle from the person who issued it—Stamp Ordinance (Cap. 189), s 35,proviso (6).
Proviso (6) to section 35 of the Stamp Ordinance makes an unstampedreceipt admissible in evidence, not generally, but only against the personwho issued it. An unstamped receipt given by the payee of a promissorynote to the maker is net admissible against ah indorsee in an actionbrought by the indorsee against the maker.
PPEAL from a judgment of the District Judge of Point Pedro.
This was an action on a promissory note brought by the indorsee
against the maker. The defendant pleaded that he had paid the full
Karthigeau Kurukkal v. Sarma.
amount due on the note to the payee before the latter indorsed the noteto the plaintiff. The defendant sought, on payment of the penaltyof one rupee under proviso (6) to section 35 of the Stamp Ordinance, toproduce the unstamped receipt given to him by the payee for the allegedpayment.
Arulambalam (A. Gnanapragasam with him) for the defendant,appellant .—The trial Judge has not even marked the unstamped receiptwhich he has ruled out. Whether a document is admitted or not it shouldbe marked as soon as any witness makes a statement with regard to it—Vide Explanation to section 154, Civil Procedure Code. Secondly it issubmitted that the learned Judge was wrong in ruling out the unstampedreceipt, since it is provided in proviso (b) to section 35 of the StampOrdinance (Cap. 189) that such a receipt would be admissible in evidenceagainst the person who gave the receipt on the payment of a penalty ofone rupee by the person tendering it, if such receipt is one which shouldhave been stamped by the giver.
[Jayetelekb J.—You did not offer to pay the penalty before thetrial Judge ruled the document out.]
The trial Judge should have requested the payment of the penaltyand should have ruled out the document only on a failure to pay thepenalty. Furthermore the Counsel who appeared at the trial was notgiven an opportunity of showing cause.
S. J. V. Chelvanayagam, for the plaintiff, respondent.—In the EnglishStamp Act of 1891 (54 and 55 Victoria, Chapter 39) section 14 [as repro-duced in The Law of Stamp Duties by E. N. Alpe, Eleventh Edition,at pp. 33 and 34] refers to unstamped documents, but not specificallyto unstamped receipts. In the Indian Stamp Act of 1899, proviso (b) tosection 35 provides specifically for the admission of unstamped receipts(vide Indian Stamp Law by Donogh—Seventh Edition—pp. 249 and 250).The purpose of this proviso is to prevent the exclusion of receipts frombeing admitted as evidence against the person by whose fault they areunstamped. (Vide Report of the Select Committee on Clause 35 of theBill, at p. 553 of Donogh on Indian Stamp Law.) Section 35 of our StampOrdinance and its proviso is an exact reproduction of the Indian Act.Only a very small percentage of these unstamped receipts would cometo the notice of Court, and the Stamp Ordinance exists for the protectionof the Revenue; therefore the proviso should have a limited application—Fletcher v. Sondes J. Proviso (&) is very clear that the unstamped receiptis admissible only against the person who actually gave it; it does notextend to his successor in title.
F Arulambalam, in reply.—A liberal construction is given to thewords of an exception-—Warrington v. Furbor 2. Hence “ him ” inproviso (6) should be construed as including his “ successors in title ”too.
Cur. adv. vuli.
1 (1826) 3 Bingham 502 al SSO.
(1807) 8 East 242 at 245.
JAYETILEKE J.—Karthigesu Kurukkal v. Sartna.
July 26, 1946. Jayetileke J.—
This is an action on a promissory note. The plaintiff, who is theendorsee of the note, instituted this action against the defendant, who isthe maker, for the recovery of a sum of Rs. 650 being principal andinterest due on the note.
The defendant pleaded in answer to the claim that he paid the fullamount due on the note to the payee before the latter endorsed the noteto the plaintiff.
At the trial the defendant sought to produce a receipt alleged to havebeen given to him by the payee for the alleged payment. That receiptwas objected to by plaintiff’s counsel on the ground that it was notstamped, and the objection was upheld by the trial Judge. Mr. Aru-Iambalam contended that the trial Judge should have admitted thedocument on the payment of a penalty of one rupee by the defendantunder proviso (6) to section 35 of the Stamp Ordinance (Chapter 189).
The proceedings do not show that the defendant’s counsel had duringthe course of the trial, invited the trial Judge’s attention to the provisionsof proviso (6) to section 35, or that he had shown his readiness andwillingness to pay the penalty in case the court held that the documentcould be admitted in evidence. However that may be, the point is nowtaken before us and we have to adjudicate upon it. The section reads—No instrument chargeable with duty shall be admitted in evidencefor any purpose by any person having by law or consent of partiesauthority to receive evidence, or shall be acted upon by any suchperson or by any public officer, unless such instrument is duly stamped :Provided that—
any such instrument not being an instrument chargeable withduty of five cents only or a bill of exchange or promissory note shall,subject to all just exceptions and to the provisions of section 36, beadmitted in evidence on payment of the duty with which the same ischargeable, or, in case of an instrument insufficiently stamped,of the amount required to make up the duty together with a penalty • –
in cases where the duty or penalty does not
exceed Rs. 2..2 50
in cases where the duty or deficiency exceeds
Rs. 2 but does not exceed Rs. 7 • 50.. 5 0
in cases where the duty or deficiency exceeds
Rs. 7 -50 but does not exceed Rs. 20..10 0
where the duty or deficiency exceeds Rs. 20, theamount of the penalty to be imposed shall bedetermined by the Commissioner of Stamps.
where any person from whom a stamped receipt could havebeen demanded has given an unstamped receipt, and such receiptif stamped would be admissible in evidence against him, then suchreceipt shall be admitted in evidence against him on payment of apenalty of one rupee by the person tendering it.
Sinnathamby v. Kathiryamit.
Proviso (a) furnishes an exception to the rule enacted in the section.Proviso (6) takes a receipt which is not duly stamped out of the exceptionmade by proviso (a). Under proviso (6) an unstamped receipt can beadmitted in evidence against a person who ought to have stamped it onpayment of a penalty of one rupee by the person tendering it. To meit seems clear that, according to the use of language which, in the absenceof some compelling context, I must suppose the Legislature to haveintended, the object of the proviso is to prevent the exclusion of a receiptfrom evidence against the person through whose fault it was not stamped.Mr. Arulambalam contended that proviso (b) would apply to this caseas the plaintiff had derived his title to the note from a person against whomthe receipt would have been admissible on payment of a penalty. I amnot convinced that I ought to accept that submission in view of the veryclear language of the proviso. The proviso says that the receipt isadmissible, not generally, but only against the person who issued itunstamped. A proviso has to be construed strictly and the rule ofstrict construction requires that the language shall be so construed thatno cases shall be held to fall within it which do not fall both withinthe reasonable meaning of its terms and the spirit and scope of theenactment. (Vide Fletcher v. Sondes
The conclusion to which I have come as a matter of interpretationof the relevant words of proviso (6) is that the receipt is not admissibleagainst the plaintiff. The appeal is, accordingly, dismissed with costs.
Wijeyewaedene S.P.J.—I agree.