Little'S Oriental Balm Ant Pharmaceutical Ltd. V. Saibo, P.P.

1938 Present: Hearne and Keuneman JJ.

LITTLE'S ORIENTAL BALM AND PHARMACEUTICAL, LTD. v. P. P. SAIBO.

111-D. C. Colombo, 6,217.

Stamping of pleadings-Value of action in plaint and damages agreed upon- Defendant's counterclaim-Value for purposes of stamp duty-No formal amendment of pleadings.

Where the plaintiff in an action for the infringement of a trade mark and for an injunction valued his claim at Rs. 1,000 and the defendant counterclaimed a sum of Rs. 30,000 as damages for the wrongful issue of the injunction, and where the parties agreed at the trial that the damages either party would be entitled to claim in the event of success should be Rs. 6,000,-

Held, that to ascertain the value of plaintiff's action for purposes of stamping, the value of his claim in the plaint, and the value of the damages agreed upon must be aggregated.

Held, further, that the agreement formally recorded would be binding for the purpose of stamping although there was no formal amendment of pleadings.
 
Sinappoo v. Theivanai (39 N. L. R. 121) followed.

CASE referred to the Supreme Court by the Registrar on a question of stamps.

M. M. I. Kariapper (with him C. S. Perera), for defendant, appellant.

F. A. Hayley, K. C. (with him C. X. Martyn), for plaintiff, respondent.

S. J. C. Schokman, C. C., for Attorney-General.

Cur. adv. vult.

September 15, 1938. KEUNEMAN J. -

This matter has been referred to us by the Registrar to determine a question relating to stamps.

The action was in respect of an infringement of a Trade Mark. The plaint prayed for an injunction and an accounting of profits made by defendant by sales, &c, and delivery of documents and labels. No damages were claimed. The subject-matter of the action was valued at Rs. 1,000.

The defendant in his answer counterclaimed the sum of Rs. 30,000 as damages sustained by reason of the injunction issued against him.

On the authority of Vellasamypulle v. The Uplands Tea Estates of Ceylon, Ltd. 1, all pleadings, documents, &c. ,-were stamped according to the Rs. 30,000 class. That decision was to the effect that the stamped duty leviable was to be calculated upon the value of the claim in convention or reconvention, whichever happens to be the larger, and not on the aggregate amount of both the claims.

On December 20, 1937, during the framing of the issues Counsel for plaintiff moved to amend the prayer of his plaint by adding the words ?and that the plaintiff be awarded damages?. No objection was taken, and the amendment was allowed. It is to be noted that the amount of the damages claimed did not appear in the amendment.

Immediately after an agreement was recorded as follows : - ?It is agreed that in the event of the plaintiff succeeding in proving the infringe ment or the passing off, that the defendant be condemned to pay a sum of Rs. 6,000 as damages. Likewise it is agreed that if the defendant succeeds in proving that he is entitled to claim damages on account of the wrongful issue of the injunction he would be entitled to claim Rs. 6,000 as damages".

These amendments were not incorporated in the pleadings, but by the agreement recorded by the District Judge, the plaintiff was entitled thereafter to claim damages of Rs. 6,000 in the event of his succeeding, and also the defendant's claim of damages was reduced from Rs. 30,000 to Rs. 6,000 in the event of his proving his case.

It is contended that the Registrar need not consider this agreement for the purpose of stamping, and that the value of the case can only be varied by an amendment of the pleadings. Reliance is placed on Perumal v. Terunnanse2. In that case it was held that where a plaintiff by reducing his claim by amendment of the plaint reduces the class of the case, the stamp duty payable on proceedings after such amendment is as on an action in the lower class.

This case however did not lay down

Click Here to Read the rest of this document