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High Court of KeralaSingle JudgeThe CRP is allowed; impugned order set aside; m...

M/S Malabar Palace, Manuel Sons Hotel (P) Ltd. v. Muhammed Haroon M.P.

Case / Petition Number:CRP No. 581 of 2013

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • B. Kemal Pasha, J.
Judgment Date
2015-07-21
Court Decision / Holding
In result, the Original Petition is allowed; the impugned order is set aside. The matter is remitted to the trial court to decide the said preliminary issue and to proceed with the suit in accordance with law. The CRP is converted to an Original Petition (O.P.(C)) and numbered accordingly.
Final Disposition
The CRP is allowed; impugned order set aside; matter remitted to the court below to decide the preliminary issue and proceed with the suit in accordance with law.

Parties to the Case

Appellants / Petitioners

  • M/S. Malabar Palace, Manuel Sons Hotel (P) Ltd., represented by its Managing Director, Sri. P.M. Antony

Respondents

  • MUHAMMED HAROON M.P., aged 47 years, S/o. Haji Abdurahiman, Qasar, 4/373 A, Gandhi Road, Kozhikode-32.

Legal Representation & Advocates

Counsels for Petitioners

  • • SRI.SHYAM PADMAN
  • • SRI.A.RANJITH NARAYANAN
  • • SRI.S.K.SAJU
  • • SMT.A.SIMI.

Counsels for Respondents

  • • SRI.P.A.HARISH
  • • SRI.NIRMAL. S.

Case Synopsis & Summary

This is a Civil Revision Petition before the Kerala High Court (B. Kemal Pasha, J.) filed by the revision petitioner Malabar Palace, Manuel Sons Hotel (P) Ltd. challenging an order of the II Additional Sub Court, Kozhikode in OS 874/2011. The core dispute arises from a document produced in a money suit, which the petitioner contends is a bond, while the respondent-plaintiff contends it is a quasi-execution instrument. The petitioner argues that the document is inadmissible for want of proper stamping under the Indian Stamp Act / Kerala Stamp Act, and that the trial court relied on the old Section 2 of the Negotiable Instruments Act (NI Act, 1881) to classify the document, which the petitioner claims is erroneous and illegal. The court below did not decide any preliminary issue and admitted the document; the revision challenges this path, contending grave illegality in applying the old NI Act definition instead of the stamping provisions. The High Court acknowledges that if a document is a bond or instrument, stamping and admissibility must be resolved under stamp laws, pari materia to the Indian Stamp Act. The court notes it has power to convert the CRP to an Original Petition and remand for proper consideration. It remits the matter to the trial court to decide the preliminary issue and proceed with the suit in accordance with law, while not expressing a view on the ultimate merits of the decision below.

Provisions of Law Cited

Indian Stamp Act, 1899Kerala Stamp ActNegotiable Instruments Act, 1881 (old Section 2)Amending Act of 1891 (NI Act)Code of Civil Procedure, 1908, Section 115Article 227 of the Constitution of IndiaCourt Fees Act (mentioned in context)

Legal Doctrines & Maxims

  • pari materia

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner's counsel contends that the document is a bond rather than a contract and should be treated under the Kerala Stamp Act/Indian Stamp Act framework. They argue the trial court misapplied the old Section 2 of the NI Act to classify the document and wrongly admitted or considered it for purposes of the suit. The petitioner asserts the necessity to examine stamp duty admissibility and to apply the correct stamping provisions, arguing that the impugned order is illegal. They urge remittal to ascertain the preliminary issue with due regard to stamping statutes and related decisions cited in Annexures A2 and A3, and even convert the CRP into an Original Petition under Article 227 to ensure proper adjudication of the issue before proceeding with the suit.

Contentions of Respondents

The respondent-plaintiff maintains that the document functions as a bond/ instrument and is enforceable, arguing that the lower court's order admitting the document was proper in the context of evidence and the suit. They rely on statutory provisions and precedents that recognize the instrument's status for the purposes of the money claim and stamp duty, while opposing unnecessary revision or conversion of the matter. They invokes the guidelines from relevant authorities (cited case law) to argue the revision under Section 115 CPC is not maintainable, asserting that the document should be evaluated within the stamping framework and the decision on admissibility must be properly considered by the trial court.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Sri Rathnavarmaraja v. Smt. VimlaAIR 1961 SC 1299PositiveThe court cites this decision as a guideline that revision is not maintainable in disputes between the State and the plaintiff; it supports the proposition that certain revisions are not maintainable under Section 115 CPC, guiding the present decision to remand and consider the stamping issue rather than proceed on the merits.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **TUESDAY, THE 21ST DAY OF JULY 2015/30TH ASHADHA, 1937** ## **CRP.No. 581 of 2013 ()** **----------------------OS. NO.874/2011 OF II ADDITIONAL SUB COURT, KOZHIKODE. ......** **REVISION PETITIONER/DEFENDANT: ------------------------------------------------------** **M/S. MALABAR PALACE, MANUEL SONS HOTEL (P) LTD., G.H. ROAD, KOZHIKODE-1, REPRESENTED BY ITS MANAGING DIRECTOR, SRI. P.M. ANTONY, S/O. P.T. MANUEL.** **BY ADVS.SRI.SHYAM PADMAN, SRI.A.RANJITH NARAYANAN, SRI.S.K.SAJU, SMT.A.SIMI.** **RESPONDENT/PLAINTIFF:** **----------------------------------------** **MUHAMMED HAROON M.P., AGED 47 YEARS, S/O. HAJI P.ABDURAHIMAN, QASAR, 4/373 A, GANDHI ROAD, KOZHIKODE-32.** **BY ADVS. SRI.P.A.HARISH, SRI.NIRMAL. S.** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21-07-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs.** ## **CRP.No. 581 of 2013** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE A1 COPY OF THE PLAINT DATED 15/11/2011 IN O.S. NO.874/2011. ANNEXURE A2 COPY OF THE WRITTEN STATEMENT DATED 04/08/2012 IN OS. NO.874/2011. ANNEXURE A3 COPY OF THE IMPUGNED DOCUMENT DATED 01/07/2010.** **RESPONDENT'S ANNEXURES:NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **rs.** ## **B. KEMAL PASHA, J.** ................................................................ C.R.P. No. 581 of 2013 ............................................................... Dated this the 21[st] day of July, 2015 ## **O R D E R** In a suit for money a document is produced, which contains, some terms including a promise to repay the amount involved. It seems that from the very beginning, the defendant has been clamouring with the contention that the said document could not be treated as an agreement, whereas, it was a bond. A specific contention was taken up in the written statement to that effect by contending that the said document, being a bond, is inadmissible in evidence, as it is insufficiently stamped. C.R.P. No.581 of 2013 -: 2 :- 2. In spite of the specific contention raised in the written statement, no preliminary issue has been raised by the court below. When the document was sought to be marked in the proceedings, it was objected to by the learned counsel for the defendant and at that stage, the court below has passed the impugned order. 3. Heard the learned counsel for the petitioner and the learned counsel for the respondent. 4. It seems that the court below has committed a grave error in relying on the definition of 'bond', which contained in the old Section 2 of the Negotiable Instruments Act, instead of relying on the provisions of the Kerala Stamp Act, which are _pari materia_ to the Indian Stamp Act 1899. Therefore, it seems that the court below has committed grave illegality in taking a decision in the matter, through the impugned order. This Court is not making any opinion as to the correctness or otherwise of the ultimate decision rendered by the court below in the matter. The procedure C.R.P. No.581 of 2013 -: 3 :- adopted, as well as the statute applied, by the court below has made the impugned order totally illegal. 5. When this revision has come up for hearing, the learned counsel for the respondent has pointed out that this revision petition is not maintainable as the said order is not amenable to revisional jurisdiction under Section 115 of the Code of Civil Procedure, 1908. True that, going by the guidelines given in _**Sri. Rathnavarmaraja v. Smt. Vimla** [AIR 1961 SC 1299],_ a revision is not maintainable in such a matter as the dispute is between the plaintiff and the State, and not inter-parties. Even though the said decision was rendered on the Court Fees Act, the said decision is squarely applicable to the facts and circumstances of this case also, when it relates to the insufficiency of stamp duty. True that it is a matter between the State and the plaintiff, and ultimately the defendant has no say in it. At the same time, it cannot be said that the defendant has no duty to point out those aspects. It seems that a specific contention C.R.P. No.581 of 2013 -: 4 :- to that effect has been resorted to by the petitioner in Annexure A2 written statement. 6. It seems that the CRP is filed in the year 2013. The petitioner has been diligently prosecuting the matter before this Court. The matter has not been heard so far. At this juncture, it is not at all fair to throw out the CRP through a judicial death by stating that the CRP is not maintainable. This Court has ample powers in such cases to convert a civil revision petition to a matter under Article 227 of the Constitution of India. The Registry is directed to convert this CRP as O.P.(C) and number it as Original Petition. 7. As pointed out earlier, this Court is not expressing any opinion with regard to the correctness of the ultimate decision taken by the court below in the matter. It seems that the court below has applied Section 2 of the Negotiable Instruments Act, 1881. Section 2 of the Negotiable Instruments Act, 1881 was repealed through the Amending Act of 1891. The court below has chosen to rely on the N.I. C.R.P. No.581 of 2013 -: 5 :- Act (old Act) to conclude the question as to whether it is a 'bond' or otherwise. The court below has not cared to go through the provisions of the Kerala Stamp Act or the Indian Stamp Act. On that simple score itself, the impugned order has become totally illegal and therefore, the same is liable to be set aside. 8. Over and above it, the learned counsel for the petitioner has pointed out that the petitioner has placed reliance on nine decisions of various courts, including the Apex Court and this Court, and the learned counsel for the plaintiff has also placed reliance on various decisions in the matter, before the court below. It seems that the court below has not adverted to any of the decisions in the matter. Therefore, the court below shall hear both the sides and enter a finding on the preliminary issue, and proceed with the suit in accordance with law, for which the matter has to be remitted to the court below. In the result, this Original Petition is allowed and the C.R.P. No.581 of 2013 -: 6 :- impugned order is set aside. The matter is remitted to the court below to decide the said preliminary issue, and to proceed with the suit in accordance with law. ## **Sd/- B.KEMAL PASHA, JUDGE** ul/- [True copy] P.S. to Judge