An instrument to fall under Art. 6 of the Stamp Act must be an agreement relating to the deposit of title deeds. The expression "that is to say" in Art. 6 is explanatory and in the explanation, there is also a limitation. The Article takes in the most common class if equitable mortgages by deposit of title deeds accompanied with a Memorandum of charge containing the terms of the mortgage.

NATESAN, J. :- This is a reference under S. 57 of the Indian Stamp Act and the question for decision is, whether the instrument in the case- falls under Art. 6 of the Stamp Act as an agreement relating to deposit of title deeds or is only an agreement falling under Art. 5. To get at the true character of the instrument in question, it is necessary to briefly refer to the circumstances in which it came to be executed and the material terms of this instrument. The executants, the respondents herein, on 13th February 1963 applied to the Canara Bank Ltd. Advance Dept., Bangalore, for a loan of Rs. 8,00,000. for business purposes at the Coinibatore office of the Bank, offering to secure the repayment of the loan, (1) by executing in favour of the Bank a document termed "Articles of Agreement" for Rs. 8,00,000, with other relative papers and (2) by delivering and depositing with the Bank with intent to create security thereon title deeds of properties set out in the schedules to their proposal. The proposal contained, the list of documents which they would be depositing, the description of the properties to which their title deeds related, immoveable properties including machineries. On the Bank expressing their willingness to grant the loan, on 21-2-1963, the executants called at the Coimbatore office of the Bank and deposited the title deeds of their properties as security for the loan of Rs. 8,00,000 which they had. The petitioners also executed in favour of the Bank the articles of Agreement embodying the terms and conditions governing the repayment of the loan It is the stamp payable on this instrument, the articles of agreement, that is now in question The executants have stamped it under Art. 5 of the Stamps Act. According to the executants, the articles of agreement do not relate to the deposit of title deeds but is only a collateral agreement governing the repayment of the advance of Rs. 8,00,000, and matters incidental to the advance. The instrument, no doubt in the annexed schedule, contains a list of title deeds of property, which had been deposited. For the Revenue, emphasis is laid on certain terms and provisions of the instrument in particular to the reference in the preamble to the borrower's proposal dated 13-2-1963, a copy of which is annexed to the Articles of Agreement and the covenants of the agreements to the effect that,

"(a) the borrower's proposal shall be deemed to constitute the basis of this agreement and of the loan to be advanced by the Bank; and

(b) that the advance shall be governed by the terms contained in the agreement as well as in security documents listed in the schedule."

A provision in clause (6) of the agreement entitled the Bank to enforce the security for the whole advance upon the happening of the events mentioned therein, notwithstanding other provisions in the instrument and clause (7) entitled the Bank to assign the debt and the benefit of the agreement and the securities for the advance, and the security documents to the Refinance Corporation for Industry (Pvt) Ltd., as security for the refinance obtained by the Bank from the said Corporation. But what has to be noticed is, that in this elaborately drawn up articles of agreement, containing the terms and conditions governing the loan or advance and the mode of repayment, there is no record of the bargain relating to the deposit of title deeds.

The instrument styled articles of agreement, even though it is executed on the date of the deposit of the title deeds, does not itself evidence or contain the terms regarding the deposit of title deeds, or the bargain for deposit of title deeds. In the original proposal which emanated from the executants to the Bank, the executants had offered (1) to execute the articles of agreement and (2) to deposit the title deeds of their immoveable property as security. The deposit of title deeds and the execution of the articles of agreement may all be in the course of the same transaction. But the ar