029-SLLR-1984-V1-VOLANKA-LIMITED-v.-ATTONEY-GENERAL.pdf
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VOLANKA LIMITED
v.
ATTORNEY-GENERAL
COURT OF APPEAL.
H A G. OE SILVA, J.. AND T. D. G. DE ALWIS, J.
C.A APPLICATION No. 78/84 -D.C. COLOMBO NO. 87092.
FEBRUARY 9, 1984.
Stamp Duty Act No. 43 of 1982. sections 2 (a), (b), 5, 72 (2) – Stamps Ordinance(Cap. 247), Schedule A. Part 11 – Are the judgment and decree entered in a caseliable to stamp duty ?
Where the question was whether the judgment and decree entered in a case wereliable to stamp duty.
Held-
The doucuments that attract stamp duty are those that are filed and presented in acivil proceeding by the parties in support of their cause and not those which theCourt is enjoined to make in the performance of its functions.
The judgment and decree in a particular civil proceeding pronounced, delivered ordrawn up by the Court in such a proceeding do not attract stamp duty.
APPLICATION for revision of an order of the Additional District Judge of Colombo.
H. W Jayewardene, Q.C.. with Lakshman Perera for the petitioner.
Sarath SitvaJD.S. G. .for Attorney-General.
Cur.adv.vult.
February 22, 1984.
H. A. G. DE SILVA. J.
This is an application to Have set aside the Order of the learnedAdditional District Judge, dated 5th January, 1984, in which heheld that stamps to the value of the appropriate class should betendered in respect of judgments and decrees made by a Court.
CA
Volanka Ltd v. Attorney-General (H. A. G. De Silva. J.)
211
On 31st August, 1982, the plaintiff instituted action D.CColombo 87092/M praying for judgment against the defendant in asum of Rs. 20,100. On the summons returnable date 31stJanuary, 1983, the defendant not being present, the case wasfixed for ex parte trial on 4th April, .1983. On 4th April, 1983, theex parte trial was held and judgment was entered for the plaintiff in asum of Rs. 12,200 with legal interest. Order was also made toenter decree in terms of the judgment:
On 18th June, 1983, the Attorneys-at-Law for the plaintifftendered in prescribed form the decree for the-signature of thelearned Judge but the Court, on this application made Order thatstamps should be tendered by the plaintiff in respect of thejudgment and decree.
On 9th November,' 1983, the Attorneys-at-Law for the plaintifffiled a1 motion seeking to have the Order of 18th June, 1983,vacated for the reasons stated therein and on 6th December,
1983, oral submissions were made in support of the motion and on5th January, 1984, the learned District Judge made the Ordersought to be set aside.
A perusal of the Order of the learned Judge shows that thereasons for his Order are as follows
. (1) Section 2 of Act No. 43 of 1982 refers to documents wherestamps should be fixed and these are said to be ' everyinstrument executed, drawn or presented in Sri Lanka ' ;stamps should be affixed to those documents that are notexempted from stamp duty under section 5 of the' Act.Further section 2 (b) of the Act refers inter alia to documents'presented’or filed in the District Court.
The Documents and Instruments referred to in section 2 are •interpreted in section 71 (2) of the Act. The documentsreferred to in the said section include judgments and decreesamong other documents and also orders and awards etc.Therefore judgments are subject to stamp duty.
The interpretation given to the word " instrument" in thesame Act is that it includes inter alia " every document bywhich any right or liability is or purports to be created,transferred, limited, extended, extinguished or recorded.'
2)2
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Therefore it is necessary to fix stamps upon documentsrecording any right or liability. In the circumstances, adocument in the. nature of a judgment or decree requires theaffixing of stamps.
Reference should be made to the Stamps Ordinance(Cap :247) Schedule A Part II. The Table contains the dutieson law proceedings in the Supreme Court. Item 9 of thisTable refers to stamp duties required in respect of judgment,decree, or order of any description. It is therefore seen bythis, that stamps are required in respect of a judgment anddecree of Court prior to this. These stamps should besupplied not by the Court or the Judge but by the partypraying for the execution of such judgment or decree.
Further page 751 of the said Legislative Enactments, Vol:VIII, refers to the value of stamps necessary for documents inthe District Court. Item 8 of. that table refers to copies ofdecree nisi, order nisi or interlocutory orders. Therefore it isvery clear that stamps had to be provided in terms of theStamp Ordinance to the District Court, on documents like thejudgment or decree, but that requirement has been deletedin the present Act though it has stated that stamps should befixed to the judgment and decree.
Section 2 of the Stamp Duty Act.'No. 43 of 1982, enacts interalia that-
'There shall be charged on-
fa) every instrument which is executed, drawn or presented inSri Lanka ;
(b) every document presented or fifed in civil proceedingsinstituted in the Supreme Court or the Court of Appeal or aDistrict Court or in Admiralty proceedings instituted in theHigh Court ;
(c)
id)
a stamp duty at the prescribed rate. Different rates may beprescribed in respect of different classes or categories ofinstruments'.
C.AVolanka Lid. v. Attorney-Genera/ (H. A G. De Silva, J.)'•213
Section 71 defines a 'document' in relation to legal proceedingsin any Court to include inter alia, judgment, decree or order of anydescription.
Mr. Jayewardene contends that when section 2(6) is read withsection 71, the judgment or decree that has to be stamped is thejudgment or decree presented or filed in civil proceedings institutedin the District Court. He further adverts to section 11 of the Actwhich refers to 'every document filed in any legal proceedings andchargeable with stamp duty shall be treated as duly stamped if theproper duty payable on every such document is affixed to the list ofsuch documents and cancelled in the manner provided for in thisAct'. This too, he submits, indicates that the judgments anddecrees which attract stamp duty are those that are filed in Court,i.e., by the parties, e.g., like a judgment that is relied on by a partyin a plea' of res judicata and which would be included in the list ofdocuments filed.
Section 184 of the Civil Procedure Code (Cap. : 101) in chapterXX makes it the duty of the Court to pronounce judgment andsimilarly section 188 thereof, requires that * as soon as may be
after the judgment is pronounced, a formal decreeshall be
drawn up by the Court in the Form No. 41 in the First Schedule orto the like effect. " It also says that the decree shall be signed by theJudge: In section 5 of the Civil Procedure Code * judgment" isdefined to mean the statement given by the Judge of the groundsof a decree or order.
Mr. Jayewardene submits that from all these statutory provisionsit is abundantly clear that the documents that attract stamp dutyare those that are filed or presented in a civil proceeding by theparties in support of their cause and not those which the Court isenjoined to make in the performance of its functions.
The learned Deputy Solicitor-General who appeared for theAttorney-General is in complete agreement with the submissions ofMr. Jayewardene and is of the view that the order of the learnedAdditional District Judge is in error. He submitted that where thelearned Judge had erred was in relying on section 2 (a) of the Actand not on section 2 (b) which would be applicable in regard toproceedings in Court. He submits that " judgment * referred to insection 2 (b) does not fall within the categories of documentsreferred in section 2 (a).
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Section 14(1) of the Act gives the method of determining thevalue of aproceeding in Court for the purposes of determining thestamp duty payable on documents presented or filed in, inter alia, aDistrict Court while sub-section (2) thereof states that " the totalstamp duty chargeable in respect of the documents filed in anyproceedings in any Court shall not exceed the aggregate of thestamp duty chargeable on the first ten documents by each party tothe proceedings "
It will be seen therefore that section 2 (b), and section 14 of theStamp Duty Act speak of documents filed or presented in or toCourt as attracting stamp duty and not documents which are madeby the Court itself in performance of its functions and duties in aparticular civil proceeding. Reference has been made by thelearned District Judge to the Schedule to the Stamps Ordinance(Cap :247) but this Ordinance does not apply to instrumentsexecuted on or after the appointed date. The Regulation made bythe Minister of Finance and Planning under section 69 of the StampDuty Act and published in Government Gazette Extraordinary No.224/3 of 20th December, 1982, in Part II of the Schedule to thatRegulation gives the rate of stamp duty chargeable for documentsfiled in Civil proceedings instituted in the Supreme Court, in theCourt of Appeal, in the High Court when exercising Admiraltyjurisdiction and in the District Court. I
I am of the view that the submissions of both counsel are entitledto succeed and that the judgment and decree in a particular civilproceeding which is pronounced, delivered or drawn up by thatCourt in those proceedings do not attract stamp duty. I accordinglyset aside the order of the learned Additional District Judge dated5th January, 1984.
T. D. G. DE ALWIS, J. – I agree.
Application allowed.
Order set aside.