Judgment

Kania, C.J.I..- This is an appeal from a judgment of the High Court at Bombay and it relates to the jurisdiction of the Court to direct the Chief Controlling Revenue Authority and the Superintendent of Stamps at Bombay to state a case for the opinion of the Court under S.57, Status Act.

2. The respondent company for its business borrowed money from the Central Bank of India Ltd. at Bombay. In order to secure the loan a document was executed on 22nd March 1945 with a stamp of Rs. 16-8-0. on the footing that it was a dead of hypothecation without prosecution of the goods. When the deed was sent to the Sub Register for registration without procession of same and sent it to the Stamp Office. The Assistant Superintendent of Stamps wrote to the respondent that the document was a mortgage with possession, chargeable with duty under Art. 40(a) of the Schedule and inquired why it was not duly stamped before execution. The respondent s solicitors in their reply contended that the document was not and was never intended by the parties to be a mortgage with possession. They pointed out that no possession of the property had been given or was intended to be given, except in certain contingencies and therefore the document was properly stamped. In reply the Assistant Superintendent intimated that the document was chargeable with duty of Rs. 56,450 and a penalty of Rs. 5,000 had been imposed. The respondents were asked to pay amount forthwith . On 27th July 1945, the respondent filed a suit against the Central Bank contending that the document was not a mortgage with possession. It was alleged that since a doubt had arisen as to whether the document gave affect to the common intention of the parties the Court s directions were sought for and if the Court found that the document as framed did not give affect to the said common intention of the parties the instrument may be rectified. On 9th August 1945, the respondent s solicitors informed the Assistant Superintendent that such a suit had been filed and requested that the demand for payment of stamp duty and penalty may not be pressed under the circumstances. In the further correspondence on behalf of the appellant, the demand was reiterated and resort to the coercive procedure of S. 48 Stamp Act was threatened. The Collector thereafter sent a letter to the respondents on 17th January 1946 demanding payment. On 26th January 1946 the wait filed by the respondent was disposed of by the Court and the rectification as prayed was ordered. The respondent s solicitors immediately intimated the result of the suit to the Assistant Superintendent and sent a copy of the deed showing the rectifications made in the original document. A similar letter was also sent to the Collector of Bombay. On 1st February 1946, the respondent s solicitors enquired of the Assistant Superintendent of Stamps whether he was agreeable to make a reference under S.56(b) to the appellant, as the question of liability to pay the stamp duty and penalty involved important question of law. A petition on behalf of the respondent to the appellant was also filed on 5th February in which it was prayed that either the order of the Assistant Superintendent of Stamps be rescinded or in the alternative a case may be referred under S.57, Stamp Act, for the opinion of the High Court. This petition was rejected on 4th July 1945. The respondent thereupon filed a petition in the High Court on 19th July 1946 praying that a writ of certiorari may be issued against the appellant, or an order may be, made against him under S.45, Specific Relief Act, to cancel the levy of the stamp duty and penalty as claimed on behalf of the appellant or in the alternative the appellant may be ordered under S.57, Stamp Act, to refer the matter to the High Court for its opinion. The matter came for hearing before Blagden J. who did not grant the first relief but directed the appellant to state a case under S.57, Stamp Act, to the Court for its opinion. The