Can a copy of an insufficiently stamped instrument be impounded under Section 33 of Kerala Stamp Act or the deficit stamp duty and penalty be realised? Whether a provision in the instrument creating an obligation to pay money, but not a fixed sum, makes the instrument a bond as defined under section 2(a) (i) of Kerala Stamp Act? These are the interesting questions to be settled in this case.

2. Petitioners are husband and wife. They are the plaintiffs in O.S.156/1996 on the file of Sub Court, Palakkad. Respondent in the C.R.P are the defendants in that suit. First respondent in the C.R.P is the plaintiff in O.S.284/95 and O.S.543/1998 on the file of the same court. Petitioner filed O.S.156/1996 for realisation of Rs.5.2 Lakhs due under an agreement for sale dated 3.4.1995. First respondent filed O.S.284/1985 for realisation of the amount paid under the agreement contending that it was not actually an agreement for sale but a loan transaction. O.S.43/1998 was filed for return of the amount on basis of an agreement dated 5.4.1995. In O.S.156/1996, when Ext.P1 agreement dated 3.4.1995 was sought to be marked as an exhibit, it was contended by respondents that the instrument was not property stamped and it is not an agreement but a bond and sufficient stamp duty was not paid and being an insufficiently stamped instrument, it cannot be admitted in evidence. Learned Sub Judge, as per impugned order in C.R.P.560/03 dated 14.2.03 held that Ext.P1 is an agreement as well as a bond and it is chargeable with duty as provided under Section 5 of Kerala Stamp Act. The said order is challenged in C.R.P.560/03. In O.S.284/95, when the very same document was sought to be marked, under Ext.P2 order passed on the same day, learned Sub Judge held that the document is both an agreement and bond and is chargeable with duty as provided under section 5 of Kerala Stamp Act. Ext.P2 order is challenged in O.P.6574/03, filed under Article 227 of Constitution of India.

3. Learned counsel appearing for petitioners and respondents were heard.

4. Learned counsel appearing for petitioners relied on the

decision of Apex court in Jupudi Kesava Rao v. Pulavarthy Venketa Subbarao (AIR 1971 SC 1070) and argued that Ext.P1 is not an instrument as defined under Section 2(j) of Kerala Stamp Act and it is only a copy of the agreement which was retained by the petitioners as is clear from the document itself and the original was handed over to respondents and they did not produce the same and therefore copy of an instrument cannot be impounded and for that sole reason the orders are to be quashed. Learned counsel also argued that the instrument does not provide for payment of money and as is clear from the contentions of the parties, originally an agreement for sale was executed on 31.3.95 where only first plaintiff was a party and he agreed to sell 8.4 acres of land for a consideration of 1.5 Lakhs per acre and as a part of the property covered by the agreement belongs to his wife, second plaintiff, Ext.P1 agreement was executed on 3.4.1995 providing for execution of a sale deed in respect of 8.4 acres after receiving consideration for 5 acres of land due to the pendency of ceiling case before this court. The instrument provides that if plaintiff succeed in that ceiling case and their right is upheld by this court, respondents have to pay the balance sale consideration. It was argued that the considerations so payable is not a fixed sum, as it depends on the result of the ceiling case and therefore Ext.P1 is not a bond as defined under Section 2(a)(i) of Kerala Stamp Act. Relying on the decision of the Lahore High Court in Tej Ram and another v. Maqbal Shah and others (AIR 1928 Lahore 370) and Apex Court in The Member, Board of Revenue v. Arthur Paul Benthall (AIR 1956 SC 35) it was argued that section 5 of the Kerala Stamp Act does not apply to the instrument as it is a single transactions and the order of the learned Sub Judge treating the instrument attract