For an instrument to partake the character of a bond an
obligation must have been created in the instrument itself. On such an understanding of the definition of bond, as given in the Act, the contents of Ext.P3 document need to be analysed. Clause (2) of Ext.P3 only states that both parties today settled the accounts involved in the said business transaction carried out during the last three years by mutual consent in full satisfaction. A reading of Clause (2) of the agreement will only show that the parties have settled the accounts involved in the business transaction on that day and not by the said agreement and the liability is not created by the same. Further in Clause (3) of Ext. P3 agreement it is admitted by the respondent that he owes Rs.53,57,000/- to the petitioner and that he admits and acknowledges that Rs.53,57,000/- is outstanding to be paid to the petitioner. The wording in Clause (3) of the said document makes it explicitly clear that it is only an acknowledgment of an amount that is outstanding to be paid to the petitioner as on the date of execution of the Ext P3 document. As per the said agreement, the respondent only undertook to repay the existing liability within a time frame.{Para 8}
9. In Mathai Mathew's case (supra) this Court held that the
distinguishing feature of a bond is that the obligation must have been created in the instrument itself and that if the obligation was a pre-existing one, it does not partake the character of a bond. This Court further held that one of the principles to be followed in interpreting a taxing statute is that if two interpretations are possible effect should be given to that which favours the citizen and not that which imposed a greater burden on them and that the said principle can be followed in construing the provisions of the Act where a citizen has to pay stamp duty on the instruments defined therein. In Krishnan Kutty's case (supra) this Court held that where an obligation is a pre-existing one, the subsequent document giving the nature of the obligation or the terms and conditions of the contract shall be a mere agreement. In Radha's case (supra) it is held that the distinguishing feature of a bond is that the obligation must have been created in the instrument itself and if the obligation was a pre-existing one, it does not partake the character of a bond.
10. As there is a specific acknowledgment in the agreement of an
amount that is outstanding to be paid to the petitioner as on the date of execution of Ext P3 document, the same can only be construed as an agreement and it does not partake the character of a bond as defined in Section 2(a) of the Act. The decisions referred to above are squarely applicable in the facts of the present case since Ext.P3 document only acknowledges a pre-existing liability of an amount to be paid by the respondent to the petitioner. In the facts and circumstances of this case, Ext.P3 can only be construed as an agreement and not as a bond.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
MR.JUSTICE VIJU ABRAHAM
O.P.(C) No.2748 of 2019
SAFIR,AGED Vs SAJID,
Dated: 13th day of October, 2021
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