Little’s Qrientql Balm, Ltd. V. P. P. Saibo.
1938Present: Hearne and Keuneman JJ.
LITTLE’S ORIENTAL BALM AND PHARMACEUTICAL,
LTD. v. P. P. SAIBO.
Ill—D. C. Colombo, 6,217.
Stamping of pleadings—Value of action in plaint and damages agreed upon—
Defendant’s counterclaim—Value for purposes of stamp duty—No
formal amendment of pleadings.
Where the plaintiff in an action for the infringement of a trade markand for an injunction valued his claim at Rs. 1,000 and the defendantcounterclaimed a sum of Rs. 30,000 as damages for the wrongful issueof the injunction, and where the parties agreed at the trial that thedamages either party would be entitled to claim in the event of successshould be Rs. 6,000,—
Held, that to. ascertain the value of plaintiff’s action for purposes ofstamping, the value of his claim in the plaint, and the value of thedamages agreed upon must be aggregated.
Held, further, that the agreement formally recorded would be bindingfor the purpose of stamping although there was' no formal amendment ofpleadings. – a
Sinappoo v. Theivanai (30 N. L. R. 121) followed.
ASE referred to the Supreme Court by the Registrar on a question'of stamps.
M.M. I. Kariapper (with him C. S. Perera), for defendant, appellant.
F. A. Hayley, K.C. (with him C. X. Martyn), for plaintiff, respondent.
S. J. C. Schokman, C.C., for Attorney-General.
Cur. adv. vult.
* (10S5) 2 K. B. 214.
KEUNEMAN J.—Little’s Oriental Balm, Ltd. v. P. P. Saibo.
September 15, 1938. Keuneman J.—
This matter has been referred to us by the Registrar to determine aquestion relating to stamps.
The action was in respect of an infringement of a Trade Mark. Theplaint prayed for an injunction and an accounting of profits made bydefendant by sales, &c., and delivery of documents and labels. Nodamages were claimed. The subject-matter of the action was valued atRs. 1,000.
The defendant in his answer counterclaimed the sum of Rs. 30,000 asdamages sustained by reaspn of the injunction issued against him.
On the authority of Vellasamypulle v. The Uplands Tea Estates ofCeylon, Ltd.1, all pleadings, documents, &c., were stamped according tothe Rs. 30,000 class. That decision wps to the effect .that the stamped dutyleviable was to be calculated upon the value of the claim in convention orreconvention, whichever happens to be the larger, and not on the aggregateamount of both the cliams.
On December 20, 1937, during the framing of the issues Counsel forplaintiff moved to amend the prayer of his plaint by adding the words“ and that the plaintiff be awarded damages ”. No objection was taken,and the amendment was allowed. It is to be noted that the amount ofthe damages claimed did not-appear in the amendment.
Immediately after an agreement was recorded as follows : —“ 1^ isagreed that in the event of the plaintiff succeeding in proving the infringe-ment or the passing off, that the defendant be condemned to pay a sumof Rs. 6,000 as damages. Likewise it is agreed that if the defendantsucceeds in proving that he is entitled to claim damages on account ofthe wrongful issue of the injunction he would be entitled to claimRs. 6,000 as damages”.
These amendments were not incorporated in the pleadings, but by”theagreement recorded by the District Judge, the plaintiff was entitledthereafter to claim damages of Rs. 6,000 in the event of his succeeding,and also the defendant’s claim of damages was reduced from Rs. 30,000to Rs. 6,000 in the event of his proving his case.
It is contended that the Registrar need not consider this agreement forthe purpose of stamping, and that the value of the case can only be variedby an amendment of the pleadings. Reliance is placed on Perumal v.Terunnanse In that case it was held that where a plaintiff by reducinghis claim by amendment of the plaint reduces the class of the case, thestamp duty payable on proceedings after such amendment is as on anaction in the lower class.
This case however did not lay down the rule that such a result can onlybe achieved by the amendment of pleadings. I agree that amendment ofpleadings is the most formal and appropriate method of varying a claim,and that it is advisable in cases such as the present to have the altera-tions embodied in the pleadings. But an agreement entered into by theparties and formally recorded by the District Judge would be binding inan action for .all other purposes, and I do not see that it does not amountto an alteration of the claims of the parties, which would have effect on thequestion of stamping, equivalent to an amendment of the pleadings.
i I c. A. C. 108.-I N. L. B. S13. ■
W1JE YEWARDENE AJ.—Fernando v. Fernando.
I accordingly hold that after the recording of the agreement thedefendant’s claim for damages was Rs. 6,000.
There is one further matter. Before he claimed damages the plaintiffvalued his action at Rs. 1,000. Later by virtue of the amendment -ofpleadings and the recorded agreement he added a claim for damages ofRs. 6,000. On the authority of Sinappoo v. Theivanai to ascertain thevalue of the plaintiff’s action, these two claims must be aggregated, andthe total value of the plaintiff’s claim was accordingly Rs. 7,000. .Thisamount is larger than the claim in reconvention now reduced to Rs. 6,000.
I hold that stamping should be on the footing of a suit for Rs. 7,000.
1 do not think any other matter arises before us except the decision ofthe question referred. Any further action which may be necessary maybe taken by the Registrar or by the parties.
Hearne J.—I agree.
LITTLE ‘ S ORIENTAL BALM AND PHARMACEUTICAL, LTD v. P.P. SAIBO