A document that creates or purports to create rights and liabilities between the parties is an instrument within the meaning of Section 2(14) of the Indian Stamp Act, 1899 and requires impounding.

Prasenjit Mandal, J.

1. THIS application is at the instance of the plaintiff and is directed against the order dated January 29, 2009 passed by the learned Civil Judge (Senior Division), First Court, Howrah in Title Suit No.38 of 2004 thereby directing the plaintiff to file a show cause whether he is willing to pay deficit stamp duty equivalent to duty chargeable as per Article 23 of Schedule of the Indian Stamp Act, 1899 with penalty of 10 times by the date fixed on the agreed valued of the property.

2. The plaintiff filed the said title suit for specific performance of contract, declaration, permanent injunction and other reliefs contending, inter alia, that the defendants promised to sell the suit property in favour of the plaintiff at a consideration of Rs.5,50,000/- out of which an amount of Rs.50,000/- was paid by the plaintiff under the receipt dated September 26, 2003. Such an agreement was held orally but the receipt was granted in respect of the payment. That suit is contested by the opposite party nos.5 and 6 by filing separate written statements. The suit was at the stage of peremptory hearing and the plaintiff/petitioner filed an affidavit-in-chief accompanied several documents. The receipt dated September 26, 2003 was also tendered for marking exhibit as a money receipt but the learned Trial Judge did not mark the same as exhibit on being objected to by the contesting defendants. The learned Trial Judge has issued show cause as indicated above. Being aggrieved by the said order, this application has been preferred by the plaintiff/petitioner.

Mr. Bidyut Banerjee, learned Advocate appearing on behalf of the petitioner, contends that the agreement between the parties was held orally. The money receipt has been granted as a proof of payment of Rs.50,000/- only towards the consideration money for the sale of the immovable property. So, this is nothing but a mere money receipt and it cannot be considered as an instrument at all. He submits that Section 2 sub-Section 23 of the Indian Stamp Act, 1899 defines what is receipt and according to this definition the receipt in question is nothing but a money receipt which requires revenue stamp of Re.1/- only as per Schedule 1A Item No.53 applicable in West Bengal. He also submits that instrument has been defined in Section 2 Sub-Section 14 as instrument includes every document by which any right or liability is or purports to be created, transferred, limited, extended, extinguished or recorded. He has also submitted the definition of conveyance. As per Section 2(10) of the Indian Stamp Act as conveyance includes a conveyance on sale and every instrument by which property whether movable or immovable, is transferred inter vivos and which is not otherwise specifically provided for by Schedule 1. In the instant case, the money receipt appearing at page 50 is nothing but a money receipt and so it does not require to be impounded as directed by the learned Trial Court.

3. Therefore, he submits that the impugned order should be set aside. On the other hand, Mr. Haradhan Banerjee, learned Advocate appearing on behalf of the substituted O. P. Nos.2 and 4, points out that the so-called receipt is not a simple money receipt at all.

4. BUT it is recorded as receipt of money from the company as interest free loan against our factory land. Therefore, such receipt clearly comes within the definition of an instrument as in Section 2(14) of the Indian Stamp Act, 1899. So, the learned Trial Judge was justified in passing the impugned order directing impounding of the said document. Mr. Ghosh, learned Advocate appearing for the Opposite Party No.3, adopting the submission of Mr. Haradhan Banerjee submits that as per terms of the receipt, it is to be decided if the said receipt can be considered as an agreement for sale or a charge of the property of the company as security for the loan.

Therefore, the point for consideration is whether the impugned order can be sustained. Upon hearing