No irregularity in order of lower court for payment of stamp duty on the mortgage deed.

1. This revision petition has been preferred by the plaintiff in the unnumbered suit O.S.S.R.No.7066 of 1966 on the file of Subordinate Judge, Nagercoil.

2. Before taking the plaint on file, the Court below by order, dated 28.2.1997 directed the petitioner/ plaintiff to remit Rs.13,180 towards stamp duty and penalty in respect of document (item II) filed along with the plaint. Being aggrieved by the said order, the present revision has been referred.

3. The petitioner had instituted the suit for the recovery of Rs.61,000 along with simple interest at the rate of 36% per annum from 16.12.1996 till the date of realisation on the entire mortgage value and costs and to pass a preliminary mortgage decree against the first defendant charged on plaint A Schedule property at Rs.61,000 with interest and also for other consequential reliefs.

4. In paragraph 3 of the plaint, the plaintiff/petitioner stated that the first defendant on 29.1.1994 executed anomalous, unregistered mortgage deed in favour of the plaintiff wherein the first defendant had agreed to repay the said sum of Rs.30,000 with interest on the same at the rate of 36% per annum, and that the first defendant had agreed to repay the said entire mortgage money with interest within six months, as stipulated in the aforesaid, unregistered, anomalous mort-gage deed, dated 29.1.1994.

5. The plaintiff has further stated that the said unregistered mortgage deed was attested by the defendants 2 and 3 on 29.1.1994. It is the further claim Of the plaintiff/petitioner that the first defendant had created a mortgage over the plaint A-schedule property in favour of the plaintiff. The very suit has been instituted under Sec.26, O.7, Rule 1 and O.34, Rules 1 and 4 of the Code of Civil Procedure.

6. Along with the plaint, the petitioner/plaintiff filed the said unregistered, anomalous mortgage deed dated 29.1.1994. The Court below called upon the petitioner/plaintiff to remit Rs.13,180 towards stamp duty and penalty payable on the said mortgage deed.

7. In the present revision petition, Mr.Ananthakrishna Nair, learned counsel for the petitioner contends that a suit has been instituted for recovery of the amounts due on promissory notes executed by the defendant 1 and as such the order directing payment of stamp duty on the unregistered mortgage deed cannot be sustained and that the cause of action is not based on the unregistered mortgage deed.

8. It is further contended that since the suit is not based on the unregistered mortgage deed, there is no need to pay the stamp duty and penalty as ordered by the Court below. These contentions, raised by the learned counsel have to be rejected as the same have been raised on a factual misconception and misreading of the plaint averments. Paragraphs 3,7,11 and 15 makes it abundantly clear that the suit is also based on the mortgage deed, that the plaintiff/petitioner seeks to recover the amount due by proceeding against the mortgaged property and that the suit itself has been instituted under O.34, Rules 1 and 4 of the Code.

9. In paragraph 15, the plaintiff had stated that the cause of action for the suit arose on 29.1.1994, is the date of anomalous mortgage deed executed by the first defendant and attested by the defendants 2 and 3 herein on 29.1.1994. Thus, on the very plaint averments, the said contentions raised by the learned counsel for the petitioner cannot be sustained at all.

10. The learned counsel for the petitioner further contended that being a mortgage deed, it is only the mortgagor, who is liable to pay the stamp duty and penalty on the mortgage deed and not the mortgagee. Learned counsel for the petitioner relied on Sec.29 of the Indian Stamp Act and contended that the stamp duty in respect of mortgage deed in question has to be paid by the executant and that the petitioner cannot be called Upon to remit the stamp duty as well as penalty. Sec.29 of the Indian Stamp Act provides that in the absence of an agreement to t