Sunday, 21 May 2017

Whether power of attorney executed outside India can be impounded after expiry of period specified in statute?

 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.
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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