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High Court Of Calcutta
Jyotirmay Bhattacharya
ALAN KAYE - Appellant
Versus
RECOVERY OFFICER, EMPLOYEES PROVIDENT Fund ORGANISATION, WEST BENGAL - Respondent
W. P. 21391 Of 2005
Decided On : 03/24/2006
STAMP DUTY - INDIAN STAMP ACT, 1899 - APPLICABILITY TO SUPPLEMENTARY AFFIDAVIT AFFIRMED IN ENGLAND - NOT REQUIRED - EXEMPTION UNDER SCHEDULE 1 (A), SERIAL NO. 4 (B) - MAINTAINABILITY OF WRIT PETITION - AFFIDAVIT NOT AFFIRMED AS PER RULES 27 AND 28 OF APPELLATE SIDE RULES - CURABLE DEFECT - OPPORTUNITY TO CURE DEFECT GRANTED.
Fact of the Case:
The petitioner challenged the validity of a demand notice issued by the Provident Fund Authorities on the ground that it was not stamped as required under the Indian Stamp Act, 1899. The petitioner also filed a supplementary affidavit affirmed in England, which was objected to by the respondents on the ground that it was not affirmed in the manner required by the Rules of the High Court at Calcutta.
Finding of the Court:
The Court held that the supplementary affidavit did not require stamping under the Indian Stamp Act, 1899, as it did not create or extinguish any right or liability of the petitioner and was exempted under Schedule 1 (A), Serial No. 4 (b) of the Act. The Court also held that the affidavit was properly affirmed before the Notary Public in England and was admissible before the Court. However, the Court found that the affidavit to the writ petition was not affirmed as per Rules 27 and 28 of the Appellate Side Rules and granted the petitioner an opportunity to cure the defect.
Issues: 1. Whether the supplementary affidavit required stamping under the Indian Stamp Act, 1899? 2. Whether the supplementary affidavit was properly affirmed before the Notary Public in England? 3. Whether the affidavit to the writ petition was affirmed as per Rules 27 and 28 of the Appellate Side Rules?
Ratio Decidendi: 1. The Court held that the supplementary affidavit did not require stamping under the Indian Stamp Act, 1899, as it did not create or extinguish any right or liability of the petitioner and was exempted under Schedule 1 (A), Serial No. 4 (b) of the Act. 2. The Court held that the affidavit was properly affirmed before the Notary Public in England and was admissible before the Court. 3. The Court found that the affidavit to the writ petition was not affirmed as per Rules 27 and 28 of the Appellate Side Rules and granted the petitioner an opportunity to cure the defect.
Final Decision: The Court held that the supplementary affidavit did not require stamping under the Indian Stamp Act, 1899, and was properly affirmed before the Notary Public in England. However, the Court found that the affidavit to the writ petition was not affirmed as per Rules 27 and 28 of the Appellate Side Rules and granted the petitioner an opportunity to cure the defect.
( 1 ) THE validity and/or legality of the notice of demand dated 8th August, 2005 being annexure 'p-1' to this writ petition, is under challenge in this writ petition.
( 2 ) INITIALLY when this application was taken up for hearing at the motion stage, a preliminary objection regarding entertainability of this writ petition by this Court, was raised by Mr. Das Adhikary, learned Senior Advocate, appearing for the Provident Fund Authorities, viz. , the respondent Nos. 1 and 2 herein, on the ground that since the cause of action for this writ petition arose in Maharashtra and the office of the principal respondent is situated in Maharashtra both of which are beyond the territorial jurisdiction of this Court, this Court has no jurisdiction to entertain this writ petition.
( 3 ) THE said preliminary objection regarding entertainability of this writ petition was overruled by this Court on 10th January, 2006 as this Court found that a substantial part of the cause of action of this writ petition arose within the territorial jurisdiction of this Court.
( 4 ) THEREAFTER, when the writ petition was again taken up for hearing, the maintainability of this writ petition was challenged by Mr. Das Adhikary on the following grounds;-i) The writ petition was not affirmed in the manner as it was required to be done in terms of the provision as contained in Order 19 Rule 3 of the Code of Civil Procedure read with Rule 36 (6) of Rules of the High Court at Calcutta relating to applications under Article 226 of the Constitution read with Rule 29 of Chapter IV of the appellate Side Rules of the High Court at Calcutta, ii) The supplementary affidavit filed by the petitioner in connection with the said writ petition, cannot be accepted and/or made a part of the writ petition as the said supplementary affidavit was not affirmed in the manner as it was required to be done before a notary Public in United Kingdom, iii) The said supplementary affidavit cannot be accepted, as the said document was not stamped with requisite stamp duty as per Section 18 of the Indian Stamp Act, 1899. Re: Ground No. (Hi)
( 5 ) WITH regard to the objection as contained in ground No. (iii), the parties were heard earlier and ultimately it was decided by this Court on 14th february, 2006 that in order to receive the said supplementary affidavit, the said affidavit is required to be stamped as per Section 18 of the Indian Stamp act. A week's time was granted to the petitioner to cure the said defect by filing sufficient stamp duty on the said document as per Section 18 of the said Act.
( 6 ) PURSUANT to the said direction passed by this Court, a non-judicial stamp of Rs. 10/- was submitted by the petitioner on 20th February, 2006.
( 7 ) THE Provident Fund authorities, viz. , the respondent Nos. 1 and 2, however, still are not satisfied. Mr. Das Adhikary, appearing on behalf of the said, respondents, submitted that the defect as pointed out above cannot be rectified by mere submission of a non judicial stamp paper of Rs. 10/- in Court. According to Mr. Das Adhikary, the said document is required to be sent to the collector for adjudication of stamp duty and/or for impounding the said document.
( 8 ) AT this juncture Mr. Arijit Chowdhury, learned Senior Advocate, submitted that he could not assist this Court properlv on the last occasion when the objection regarding the acceptability of the said supplementary affidavit for want of requisite stamp as per Section 18 of the Indian Stamp Act, 1899 was considered and/or decided by this Court.
( 9 ) ACCORDINGLY, the parties were heard at length again on the said issue.
( 10 ) MR. Chowdhury submitted that Section 18of Indian Stampact, 1899 deals with the requirement of stamping certain instruments other than bills and notes executed out of India. Mr. Chowdhury-pointed out from the said Act itself that instrument has been defined in Section 2 (14) of the said Act. Section 2 (14)of the said Act provides t
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