prescribes a particular manner for dealing with a situation, the
same will have to be considered in accordance with the said
provision of law. By incorporating three months' period in
Sec.18 of the Act, I am of the considered opinion that, it is not
without any meaning, purpose or purport. Obviously, when a
document is executed outside the country, a time limit is
prescribed to produce the same for affixing with stamp, with
the obvious intention of avoiding any manipulation or other
extraneous circumstances, especially for the reason that the
executant is a person residing outside the country. Therefore,
I am of the considered opinion that Ext.P3 order passed by the
1st respondent is in accordance with law, and therefore I do not
find any reason to interfere with the said order exercising the
power conferred on this Court under Article 226 of the
Constitution of India.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE SHAJI P.CHALY
26TH DAY OF SEPTEMBER 2016
WP(C).No. 26645 of 2016 (E)
THOMAS C. KUNJACHAN,
Vs
THE REVENUE DIVISIONAL OFFICER, KOLLAM,
Citation: AIR 2017 (NOC) 216 kerala
In this writ petition, petitioner seeks to quash Ext.P3
order passed by the 1st respondent, whereby request made by
the petitioner to affix stamp to a power of attorney executed
abroad was declined, and for other related reliefs. Material
facts for the disposal of the writ petition are as follows:
2. Petitioner is a non-resident Indian and presently
employed in USA. His mother also is residing in USA. Both
petitioner and his mother have assets in India and particularly
in Piravanthoor Village, Pathanapuram Taluk. Mother has
executed a power of attorney in favour of the petitioner, true
copy of which is produced as Ext.P1. According to the
petitioner, Ext.P1 power of attorney is valid and it is in force
even now. The power of attorney executed by the mother of
the petitioner is attested before the Notary Public in and for
the State of Texas and also attested in the Consulate office.
But, as contemplated under the Kerala Stamp Act, 1959
[hereinafter called 'the Act'], the required stamp duty is not
affixed on the power of attorney. According to the petitioner,
in exercise of the power conferred under the power of
attorney, he has executed documents and conveyed property.
3. However, recently petitioner entered into an
agreement for sale of a property with one Binoy Paul, in
exercise of the power conferred under the power of attorney.
The buyer has to obtain a housing loan and for the purpose he
submitted a copy of the power of attorney to the State Bank
of Travancore, Punalur Branch. The Bank has returned the
same with a direction to re-submit the document after
adjudication and stamping of power of attorney. Accordingly,
as per Ext.P2 correspondence issued by the Bank, petitioner
approached the 1st respondent and produced the power of
attorney offering to pay the required stamp duty and penalty.
But the 1st respondent rejected the application of the petitioner
stating that the time limit prescribed for affixing the stamp has
expired, and therefore stamp duty cannot be levied to the
power of attorney.
4. According to the petitioner, the time limit prescribed
under Sec.18 is only for the purpose of paying the required
stamp duty without penalty. In other cases, it is open for the
respondents to exercise the power under Sec.33, and dealt
with under Sec.39 of the Act. It is in this background, this writ
petition is filed by the petitioner challenging Ext.P3 order.
5. Heard learned counsel for the petitioner and the
learned Senior Government Pleader, and perused the
documents on record and the pleadings put forth by the
petitioner.
6. The question with respect to charging of stamp duty
executed out of India is dealt with under Sec.18 of the Kerala
Stamp Act, 1959, which read thus:
"18. Instruments executed out of India.--
(1) Every instrument chargeable with duty executed
only out of India may be stamped within three months
after it has been first received in the State of Kerala.
(2) Where any such instrument cannot, with
reference to the description of stamp prescribed
therefor, be duly stamped by a private person, it may
be taken within the said period of three months to the
Collector who shall stamp the same, in such manner as
the Government may by rules prescribe, with a stamp
of such value as the person so taking such instrument
may require and pay for."
7. Therefore, on a reading of Sec.18, it is distinctively
clear, every instrument chargeable with duty executed out of
India may be stamped within three months after it has been
first received in the State of Kerala. Therefore, invoking the
said provision only, 1st respondent has passed Ext.P3 order,
declining to charge with stamp duty. On verifying Ext.P1
power of attorney, it is clear, same is executed on 24th day of
September, 1995 in the United States of America. Necessarily,
the deed has to suffer stamp duty as provided under Sec.18
within the time limit prescribed thereunder, viz. three months
of its receipt in the State of Kerala. Petitioner has produced
the same before the 1st respondent for stamping as per an
application dated 23.03.2016, apparently after 20 years.
Moreover, petitioner has no case that it was produced before
the authority within the time limit of three months prescribed
under law. Therefore, it cannot be said that Ext.P3 order
passed by the 1st respondent is an arbitrary or illegal action.
8. However, learned counsel for the petitioner has
invited my attention to a Division Bench judgment of this Court
in 'Asokan v. Deputy Collector & another' [1995 (2) KLJ
315] to canvass the proposition that there is no period of
limitation for impounding an instrument insufficiently stamped.
Learned counsel in that regard invited my attention to Sec.33
of the Act. Sec.33 deals with a circumstance wherein every
person having by law or consent of parties authority to receive
evidence, and every person in charge of public office, except
an Officer of Police, before whom any instrument, chargeable
in his opinion, with duty, is produced or comes in the
performance of his functions, shall, if it appears to him that
such instrument is not duly stamped, impound the same. In
my considered opinion, Sec.33 deals with an entirely different
situation of production of an insufficiently stamped document
before an authority and consequent action thereto.
9. Learned counsel has also invited my attention to
Sec.39 of the Act, where the Collector is vested with powers to
stamp instruments impounded. There, when the collector
impounds any instrument under Sec.33, or receives any
instrument sent to him under sub-section (2) of Sec.37, not
being an instrument chargeable with a duty of [twenty paise]
or less, he shall adopt a procedure in order to identify whether
the document impounded is not charged with a duty or not as
per the procedure contemplated thereunder.
10. Learned counsel has further invited my attention to
Sec.17, which deals with instruments executed in the State of
Kerala, wherein it is stated that all instruments chargeable
with duty and executed by any person in the State of Kerala
shall be stamped before or at the time of execution. Referring
to these sections, an attempt was made by learned counsel for
the petitioner to establish that, so far as impounding of a
document is concerned, there is no material difference
between a document executed within the country and outside,
and therefore merely because a document is produced after
three months of its execution outside the country, will not
prevent the collector from impounding the document, after
imposing the penalty contemplated under Sec.39.
11. However, on a reading of Sec.33, what is discernible
is that, Sec.33 deals with a situation wherein a document is
produced before an authority who is authorised to receive
evidence, finds that the document is not sufficiently stamped,
then the procedure contemplated thereunder has to be
followed, and thereafter the collector is to follow the
proceedings contemplated under Secs.37 and 39 of the Kerala
Stamp Act, 1959. Admittedly, there is no such situation
existing in this case. Ext.P1 power of attorney was not
produced by the petitioner before any authority authorised to
receive evidence. On the other hand, Ext.P1 is a document
executed outside the country which is to be suffered with
stamp duty as contemplated under Sec.18 of the Stamp Act.
The same is a condition prescribed under the Act to ensure
that the State is not losing revenue on the basis of a document
executed outside the country for the purpose of use of the
same within the country and particularly within the State.
Therefore, Sec.18 deals with a situation delineated from other
provisions of the Kerala Stamp Act, 1959. Rather, Sec.18
deals with an exclusive situation in respect of an instrument
executed outside India and chargeable with duty. In that view
of the matter, I do not think that the contention put forth by
the petitioner to treat Sec.18 para materia with Sec.33, and
other consequential provisions of the Act, is a sustainable
argument. Therefore, the judgment of this Court in 'Asokan'
supra has no bearing to the facts and circumstances of this
case at all.
12. It is a well settled proposition of law, when a statute
prescribes a particular manner for dealing with a situation, the
same will have to be considered in accordance with the said
provision of law. By incorporating three months' period in
Sec.18 of the Act, I am of the considered opinion that, it is not
without any meaning, purpose or purport. Obviously, when a
document is executed outside the country, a time limit is
prescribed to produce the same for affixing with stamp, with
the obvious intention of avoiding any manipulation or other
extraneous circumstances, especially for the reason that the
executant is a person residing outside the country. Therefore,
I am of the considered opinion that Ext.P3 order passed by the
1st respondent is in accordance with law, and therefore I do not
find any reason to interfere with the said order exercising the
power conferred on this Court under Article 226 of the
Constitution of India.
Resultantly, writ petition fails and accordingly it is
dismissed.
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