An instrument executed by a surety to secure the due performance of a contract is governed by Article 48 of Schedule 1-A of the Indian Stamp Act, 1899.

P. KODANDARAMAYYA, J.

( 1 ) THE Commissioner of Survey Settlements and Land Revenue Records, Andhra Pradesh, Hyderabad , as the Chief Controlling Revenue Authority made this reference under Sec. 57 of the Indian Stamp Act 2 of 1899 (hereinafter called the Act ). The reference is in the following terms. Whether the document Ex. B. 4 should be levied under Article 48 of Schedule 1-A of the Indian Stamp Act, 1899. The facts, leading to the reference are briefly as follows :-

( 2 ) ONE Potta Appalaraju, owner of lorry A. P. S. 2486 approached this court and obtained a direction in a writ petition that the District Panchayat Officer should release his lorry seized by the said officer on condition that the lorry owner should execute a personal bond for a particular sum and a third party also should execute a bond giving immovable property as security for a like sum. In pursuance of the said order, one Manda Suryakanthamma executed the security bond in question agreeing that"in case the lorry owner Sri Potta Appalaraju fails to produce the lorry A. P. S. 2486 before the said District Forest Officer, Flying Squad Division, Vizianagaram, whenever occasion arises and whenever the said D. F. O. , directs him to do so and the said amount of Rs. 40,000. 00 shall have a charge over the schedule mentioned property described in para-III hereunder in which property, I hereby declare I have full legal and marketable title and which properties are in my khas possession and which properties are not burdened with any maintenance and title charges". A schedule is appended giving particulars of the property, with stated boundaries. The same was signed by the executant attested by two witnesses. The question arose on the objection by the executant whether this document should be stamped under the Stamp Act and whether Art. 48 of the Schedule 1-A of the Act is attracted to the facts of this case and the reference was made accordingly.

( 3 ) MR. C. Trivikramarao, who assisted the court as amicus curiae contended that the instrument is an indemnity bond liable for duty under Art. 30 of Schedule 1-A which suffers the same duty as the security bond under Art. 40 and submitted alternatively that the reference may be accepted. On the other hand, the learned G. P. Sri N. Subbareddy stated that the instrument in question is governed by Art. 85 of Schedule 1-A as it is a mortgage and liable to higher rate of duty.

( 4 ) SEC. 3 of the Act is the charging section. The levy of duty is on the instrument but not on the transaction. The court should look into the form of instrument as well as substance of the transaction in order to arrive at the conclusion by which article of the schedule the instrument is governed. There are four articles which have a bearing on the question before us viz. , Arts. 15, 34, 40 and 57 of Schedule 1 (Central Act) which correspond to Arts. 13, 30, 35 and 48 respectively in Schedule 1-A of the State Act. The operative portions of those Articles in Schedule 1-A are as follows :-"art. 13. Bond (as defined by S. 2 (5)) not being a debenture and not being otherwise provides for by this Act, or by the Andhra Court-fees and Suits Valuation ACt, 1956; Art. 30 Indemnity Bond. Art. 35. Mortgage deed not being an Agreement relating to Deposit of title deeds, Pawn or Pledge (No. 7) Bottomry Bond (No. 14), Mortgage of a crop (No. 36) respondentia Bond (No. 47) or Security Bond (No. 48 ). Art. 48. Security Bond or mortgage Deed, executed by way of security for the due execution of an office, or to account for money or other property received by virtue thereof, or executed by a surety to secure the due performance of a contract". The corresponding provisions in the Act defining the bond and mortgage deed in Secs. 2 (5) and 2 (17) read as follows :- "2 (5) "bond " includes - (a) Any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as

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