The obligation to pay must be created for the first time under the document and must not be pre-existing for an instrument to be considered a 'bond' under the Kerala Stamp Act.

1. The plaintiff is the revision petitioner.

2. The order under challenge reads:

"This is a bond as defined in S.2 (a) (ii) of the Kerala Stamp Act, and proper stamp duty is Rs. 200/-. Stamp duty paid is only Rs. 5/-. So deficit stamp duty is Rs. 195/-. Penalty is Rs. 1950/-. Plaintiff will pay Rs. 195/- as deficit stamp duty and Rs. 1950/-and penalty".

3. S.2 (a) (ii) of the Kerala Stamp Act reads:22 Definitions.- In this Act, unless the context otherwise requires,-(a) "bond" includes-(i)

(ii) any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another; ".

4. To call an instrument a 'bond', it should satisfy all the following three conditions?

i. The instrument shall be attested by a witness,

ii. It shall not be payable to order or bearer.

iii. By the said document the person who has executed it shall oblige himself to pay money to another.

The instrument in question no doubt, is one attested by witnesses. It is also "not payable to order or bearer". If the third condition is also satisfied, the instrument will be a 'bond'. The question therefore is. does the instrument satisfy the condition also? To answer this question, we have to construe the expression, "any instrument whereby a person obliges himself to pay money to another". From the context in which this expression is used it is clear that the obligation to pay must be created for the first time, under the document and must not be pre-existing. Having understood the law, let us see whether the executant of the instrument for the first time has obliged himself to pay the money to the plaintiff bank. That the obligation to pay the loan amount had already been undertaken by the executant of the document (as is seen from the other documents namely the guarantee document etc. executed by him) is beyond dispute. If that be the position, it cannot be said that the executant for the first time has created an obligation by this document to pay the loan amount. He, by executing this document, has only confirmed a pre-existing obligation. If that be so, the document cannot be treated as a 'bond' within the meaning of S.2(a)(ii) of the Kerala Stamp Act.

5. In the light of what is stated above, the order under challenge is liable to be vacated. I accordingly vacate the same. If the petitioner has already paid the deficit stamp duty and penalty, the same shall be refunded to the petitioner.

The C. R. P. is allowed. No costs.

Allowed.