Item 99 of the Notification under section 9 of the Indian Stamp Act, 1899, exempts from stamp duty both an unattested instrument evidencing an agreement relating to the hypothecation of movable property and a deed of hypothecation.

Dutt. J.: This Rule is at the instance of the plaintiff, the Central Bank of India and it is 4irected against Order No. 21 dated June 1, 1976 and Order No. 23 dated June 25, 1976 of the learned Sub-ordinate Judge, 8th Court, Alipore.

2. The suit in which the impugned orders were passed, bas been instituted by the petitioner against the opposite party, inter alia, praying for a decree for Rs. 83, 371. 56 P. upon a declaration that all stocks of Calcium carbonate power, spindle, oil, raw rubber etc. and machinery and other kinds of raw materials are charged and hypothecated for payment of the dues of the petitioner, Further, the petitioner has prayed for a decree for sale of the said goods and machinery mentioned in Schedule 'G' to the plaint by public auction or by private treaty-with liberty to the petitioner to appropriate the sale proceeds thereof after defraying therefrom costs, charges and expenses of the sale in protanto satisfaction of the claims of the petitioner, interim interest and interest on judgment.

3. The opposite party did not appear in the suit and, as such, it was taken up for bearing exparte. At the said exparte hearing of the suit, the petitioner wants to prove the said hypothecation deeds dated September 14, 1973 and March 23, 1973 in respect of movable properties as described in the Schedule to the said documents. The deeds bear stamp worth Rs. 1. 50 and refugee relief stamp worth 10P. each.

4. The learned Subordinate Judge took the view that the deeds should be stamped under Article 6 of the Bengal Stamp Amendment Act. He directed the Sheristadar to check and report about the stamp duty and penalty to be paid by the petitioner on the said deeds. The hearing was adjourned. Thereafter, by his order dated June 1, 1976 the learned Subordinate Judge directed the petitioner to put in the stamp duty and penalty as per the report of the Sheristadar. The petitioner filed an application for recalling the said order dated-June 1, 1976, It was contended on behalf of the petitioner that as per the Notification issued by the Central Government such hypothecation deeds were exempted from payment of stamp duty under section 9 of the Indian Stamp Act. The learned Subordinate Judge overruled the said contention of the petitioner and rejected the said application. Hence this Rule.

5. Mr. Saktinath Mukherjee, learned Advocate appearing on behalf of the petitioner, has produced before us a copy of Mulla’s Indian Stamp Act, 1899, Third Edition, which contains the Notification under section 9 of the Indian Stamp Act. The Notification is, inter alia, as follows :-

"Financial Department No.6 of the 12th September 1931. In exercise of the powers conferred by section 9, clause (a) of the Indian Stump Act, 1899 (11 of 1899), and in super session of all previous notifications issued from time to time under the said clause of the said section, the Governor General in Council is pleased to reduce, to the extent set forth in ench case, the duties chargeable under the said Act in respect of the instruments hereinafter described under Nos. 3, 4, 10, 23, 25, 48, 74, 89, 90, 91, 98, 102, 109, 110 and 111 and to remit the duties so chargeable in respect of instruments of the other classes hereinafter described.

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99. Unattested instrument evidencing an agreement relating to the hypothecation of moveable property, where such hypothecation has been made by way of security for the repayment of money advanced or to be advanced by way of loan or of an existing or further debt." The learned Subordinate Judge has taken the view that Item No. 99 under the said Notification exempts from stamp duty an agreement relating to the hypothecation of movable property and not a deed of hypothecation. In that view of the matter, it has been held by the learned Subordinate Judge that the, deeds of hypothecation which do not evidence an agreement relating to the hypothecation of movable property are not exempt from stamp duty under item 9