Raus Sharif J:

Application

This is an application by the plaintiff by way of originating summons for the following orders:

(a) a declaration that the levy of stamp duty in the sum of RM30,000 against the plaintiff vide defendant's letter dated 8 September 1995 is ultra viress. 35 First Schedule, 5 Stamp Act 1949 and is null and void and of no effect;

(b) an order directing the defendant to restitute to the plaintiff a sum of RM30,000;

(c) an order directing the defendant to pay the plaintiff interest at the rate of 8% per annum on the sum of RM30,000 from 9 September 1997 to the date of full realization; and

(d) costs.

Facts

The brief facts leading to this application are as follows:

The plaintiff is a co-operative society incorporated under the Co-operative Society Act 1993. By a sale and purchase agreement dated 24 May 1995 the plaintiff purchased a property therein described for a total purchase price of RM1.2 million. The plaintiff's solicitors submitted the appropriate forms to the defendant for the adjudication as to the proper stamp duty under s. 35 of Stamp Act 1949 ('the Act'). The defendant, acting under s. 36 of the Act, assessed the stamp duty payable on transfer of the property to be a sum of RM30,000. The plaintiff, on 10 October 1995, paid the said sum of RM30,000.

On 6 August 1997, approximately two years later, the plaintiffs discovered that under s. 35 (General Exemptions) First Schedule, para. 5 of the Act, the plaintiff being a co-operative is exempted from paying any stamp duty and sought for a refund of the same. By a letter dated on 9 October 1997 the defendant rejected the claim on the ground that:

Suratcara tuan disempurnakan pada 1995. Sebaliknya permohonan tuan dibuat pada 6hb Ogos, 1997.

Seksyen 57 tersebut di atas diperuntukkan:

... the application for relief is made within twelve months after the stamp has been spoiled or become useless in the case of an executed instrument after the date of the instrument ... .

Findings

I have no hesitation to find that the defendant was wrong to rely on s. 57 for not refunding the duty to the plaintiff. To me, s. 57 refers to spoiled stamp. The heading reads "Allowance for spoiled stamps". Section 57(1) refers to stamp on any paper. So is sub-s. 57(b). Section 57(c) refers to bills of exchange while s. 57(d) refers to promissory note and s. 57(f) refers to:

(i) instrument which is found to be void from the beginning;

(ii) instrument subsequently found unfit by reason of error or mistake;

(iii) instrument which is incomplete or not registered within time which fails for the purpose or become void;

(iv) instrument which is inadvertently and unsigned spoiled and in lieu whereof another instrument made and for the same purpose is executed and duly stamped or which become useless because transaction affected by some other instrument duly stamped.

The proviso to sub-s. 57 allows for relief if application for the same is made within 12 months after the stamp becomes spoilt, useless or if in case of an executed instrument after the date of the instrument. However, the instrument in our present case, is a transfer from which duty has been paid. Clearly s. 57 of the Act does not apply to the plaintiff's application.

Thus, the next issue is whether or not the plaintiff is entitled for the refund of the paid stamp duty. The plaintiff is relying on the ground that the plaintiff is exempted from any stamp duty on the transfer of the said property in virtue of s. 35 of the Act which reads as follows:

35. Exemptions.

The instruments appearing under the heading of "General Exemptions" in the First Schedule shall not be chargeable with duty.

Paragraph 5 of the General Exemptions of the First Schedule provides inter alia:

5. All instruments relating solely to the business of any society registered under any written law relating to co-operative societies and executed by an officer or member of such society, the duty on which, but for the exemption hereby granted, be payabl