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2021 Supreme(Ker) 760
IN THE HIGH COURT OF KERALA
ANIL K. NARENDRAN, J.
Saji Mathew – Appellant
Versus
State of Kerala – Respondent
W.P.(C) No.25801 of 2020
Decided on : 25-01-2021
Advocate Appeared:
For the Appellant : P. Haridas, Biju Hariharan, R.B. Balachandran, Renji George Cherian, P.C. Shijin & Rishikesh Haridas
For the Respondent: Sr. Government Pleader (Amminikutty)
The main legal point established in the judgment is the requirement of stamping instruments executed in and outside India, the specific scenarios covered by clauses (g) of sub-section (1) of S.17 and (c) of sub-section (1) of S.33, and their overriding effects.
Headnote:
Power of Attorney - Registration Act - Kerala Stamp Act - 17(1)(g) of the Registration Act, 1908, 18 of the Kerala Stamp Act, 1959, 33 of the Registration Act - The court discussed the provisions of S.17, S.18, and S.33 of the Kerala Stamp Act and the Registration Act. It highlighted the requirement of stamping instruments executed in and outside India, the impounding of documents, and the consequences of not duly stamping an instrument. The court also emphasized the specific scenarios covered by clauses (g) of sub-section (1) of S.17 and (c) of sub-section (1) of S.33, and their overriding effects.
Fact of the Case:
The petitioner sought to quash a communication rejecting the request to adjudicate stamp duty on a power of attorney. The petitioner argued that the power of attorney required registration under S.17(1)(g) of the Registration Act and should be considered under S.18 of the Kerala Stamp Act.
Finding of the Court:
The court set aside the communication and directed the respondent to consider the petitioner's request in accordance with S.18 of the Kerala Stamp Act, taking into account the relevant legal provisions and a previous court decision.
Issues: The issues revolved around the rejection of the petitioner's request to adjudicate stamp duty on a power of attorney and the applicability of S.17(1)(g) of the Registration Act and S.18 of the Kerala Stamp Act.
Ratio Decidendi: The court emphasized the need for stamping instruments executed in and outside India, the impounding of documents, and the consequences of not duly stamping an instrument. It also clarified the specific scenarios covered by clauses (g) of sub-section (1) of S.17 and (c) of sub-section (1) of S.33, and their overriding effects.
Final Decision: The Writ Petition was disposed of by setting aside the communication and directing the respondent to consider the petitioner's request in accordance with S.18 of the Kerala Stamp Act, within a period of two weeks.
JUDGMENT :
The petitioner, has filed this Writ Petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 communication dated 13.11.2020 issued by the 2nd respondent Revenue Divisional Officer, whereby the petitioner was informed, that he is not a person authorised to receive Power of Attorney in terms of S.17(1)(g) of the Registration (Kerala Amendment) Act, 2012. The petitioner has also sought for a writ of mandamus commanding the 2nd respondent Revenue Divisional Officer to receive Ext.P1 Power of Attorney dated 27.08.2020 and adjudicate the stamp duty payable on the same, receive the stamp duty payable and stamp the same in accordance with S.18 of the Kerala Stamp Act, 1959.
2. On 24.11.2020, when this Writ Petition came up for admission, the learned Government Pleader sought time to get instructions.
3. Heard the learned counsel for the petitioner and the learned Senior Government Pleader for respondents.
4. In the instant case, Ext.P1 power of attorney dated 27.08.2020 is one executed by Joseph Kaduthanam, S/o. Late Pothen Thomas, in favour of the petitioner, which is executed before the competent authority in Germany and attested by the German Attesting Authority. The petitioner produced Ext.P1 power of attorney before the 2nd respondent Sub Collector and Revenue Divisional Officer, Kottayam, under S.18 of the Kerala Stamp Act seeking to adjudicate the stamp duty payable and to impound the same after receiving the value of stamp so adjudicated. Ext.P2 is the application made by the petitioner dated 30.10.2020 in that regard. The request made in Ext.P2 stands rejected by Ext.P4 communication dated 13.11.2020 issued by the 2nd respondent, whereby the petitioner was informed that no action can be taken pursuant to the request made by the petitioner in Ext.P2 on Ext.P1 power of attorney since the petitioner is not a person authorised to receive power of attorney in terms of Clause (g) of sub-section (1) of S.17 of the Registration Act, 1908 as amended by the Registration (Kerala Amendment) Act, 2012.
5. Section 17 of the Kerala Stamp Act, 1959 deals with instruments executed in the State of Kerala. As per S.17, all instruments chargeable with duty and executed by any person in the State of Kerala shall be stamped before or at the time of execution. S.18 of the Act deals with instruments executed outside India. As per sub-section (1) of S.18, every instrument chargeable with duty executed only out of India may be stamped within three months after it has been first received in the State of Kerala. As per sub-section (2) of S.18, where any such instrument cannot, with reference to the description of stamp prescribed therefor, be duly stamped by a private person, it may be taken within the said period of three months to the Collector who shall stamp the same, in such manner as the Government may by rules prescribe, with a stamp of such value as the person so taking such instrument may require and pay for.
6. In Thomas C. Kunjachan v. Revenue Divisional Officer & Anr. 2017 (4) KHC 335 a Division Bench of this Court noticed that the normal rule regarding time of stamping an instrument is specified in S.17 of the Kerala Stamp Act. It is to be stamped before or at the time of execution. S.18 is an exception in relation to instruments executed outside India. It provides for stamping within three months of being first received in India. However, S.33 of the Act clearly provides that where an instrument chargeable with duty is produced before a person specified in charge of a public office, on which duty as specified is not paid, then such person shall impound and send the same to the Collector. The document having been impounded, S.34 of the Act provides that an instrument not duly stamped cannot be admitted in evidence. But when comes to S.39 of the Act, which clearly authorises the Collector to stamp the instrument impounded and once it is stamped with penalty, the consequences under S.41 of the
