Treesa Varghese @ Tressiamma v. Antony

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 15TH DAY OF FEBRUARY 2018 / 26TH MAGHA, 1939** **OP(C).No. 416 of 2018** **O.S.127/2012 of 1ST ADDL. SUB COURT, NORTH PARAVUR** ## **PETITIONER:** **TREESA VARGHESE @ TRESSIAMMA, AGED 59 YEARS, W/O LATE VARGHESE, KURISSUPARAMBIL HOUSE, FORT KOCHI, ERNAKULAM DISTRICT.** **BY ADV.SRI.ELDHO PAUL** ## **RESPONDENT:** **ANTONY, S/O LATE VAREED, AGED 55 YEARS, KALLUMPURATH HOUSE, MANNAMTHURUTHU MURI, VARAPUZHA, ERNAKULAM DISTRICT-683517.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **OP(C).No. 416 of 2018 (O)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 TRUE COPY OF SUIT OS NO.127/2012 DATED 5.3.2012). EXHIBIT P2 TRUE COPY OF WRITTEN STATEMENT FILED BY ANTONY DATED 29.2.2016. EXHIBIT P3 TRUE COPY OF AGREEMENT EXECUTED BY DECEASED BROTHER SILVY IN FAVOUR OF THE PETITIONER DATED 1.1.2012. EXHIBIT P4 TRUE COPY OF THE GIST OF ORDER DATED 8.1.2018 OF THE 1ST ADDL. SUB COURT, NORTH PARAVOOR.** ## **RESPONDENT(S)' EXHIBITS** ## **NIL** **TRUE COPY** **P.S. TO JUDGE** **EL** ## **ALEXANDER THOMAS, J** . ------------------------------------------------- O.P.(C) No. 416 of 2018 ------------------------------------------------Dated this the 15[th] day of February, 2018 ## **JUDGMENT** The main prayer in this Original Petition (Civil) filed under the enabling provisions of Article 227 of the Constitution of India is as follows : “To set aside Ext.P4 order passed by the 1[st] Additional Sub Court, North Paravoor in OS No.127/2012 dated 08.01.2018.” 2. Heard Sri.Eldho Paul, learned counsel appearing for the petitioner. In the nature of the orders proposed to be passed in this petition, notice to the respondents will stand dispensed with. 3. The order under challenge is one at Ext.P4 dated 08.01.2018 rendered by the trial court concerned (the court of Additional Sub Judge, North Paravoor) in O.S. No. 127/2012 whereby the said court has ordered that the proposed Ext.A1 document is impounded under Section 33(1) of the Kerala Stamp Act, 1959. The trial court has held as per Ext.P4 order that Annexure A1 document comes within the definition of 'bond' in terms of the provisions contained in the Kerala Stamp Act and that the plaintiff ought to have remitted stamp duty as OP(C) : 416 of 2018 -:2:- provided under item No.13 of the Schedule to the Kerala Stamp Act and since no such stamp duty has been remitted, the consequential procedure under Section 33(1) of the Stamp Act is to be followed. 4. Petitioner has made several contentions in support of his plea that Annexure A1 is only an agreement and not bond. Therefore, Ext.P4 order is _per se_ illegal and ultravires and none of his contentions has been even remotely adverted to or considered by the trial court while drafting the impugned order at Ext.P4. 5. Sri.Eldho Paul, learned counsel appearing for the petitioner has taken the attention of this Court to the well considered decision of this Court in **Viswanathan S. v. Leslie Philip** [2010 (4) KHC 54] wherein this Court has found a distinction between an agreement and a bond. It will be profitable to refer to the relevant part of paragraph No.2 and also 6 which read as follows : “ 2. ................ A Bond is defined in Section 2 of the Act, thus : (a) “bond” includes- (I) any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be; OP(C) : 416 of 2018 -:3:- (ii) any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another; and (iii) any instrument so attested, whereby a person obliges himself to deliver grain or other agricultural produce to another;” “Agreement” comes from the word “agreementum” which is a word compounded by two words, viz; “of aggregatio” and “mentium”. By contraction of those words and by short pronunciation of them they are made one word, viz; agreementum which is no other than a union, collection, copulation and conjunction of two or more minds in anything done or to be done. Though the word “agreement” is not defined in the Act, that word finds definition in the India Contract Act as every promise and every set of promises forming the consideration for each other is an agreement. Every agreement is not a contract, but every contract contains an agreement which is enforceable under law. 6. There is weight in the contention of the learned counsel for petitioner that it is not as if as per Ext.P2 a liability is created on the respondent for the first time to pay Rs.50,000/- to the petitioner. Instead payment of the said amount is for service rendered and is only one of the terms and conditions of the agreement entered into between the parties their primary intention being conduct of business as stated therein subject of course to the terms and conditions specified. Condition No.2 which is relied on by the parties did not create any unconditional obligation on respondent to pay any amount to the petitioner for the first time. The agreement only evidences OP(C) : 416 of 2018 ## -:4:- terms and conditions agreed to between the parties. The agreement contains reciprocal promises. Payment of Rs.50,000/- to the petitioner is conditional on petitioner rendering service to the respondent. I am unable to understand reading Ext.P2 as a whole and condition NO.2 in particular that it is a document as per which liability is created for the first time on respondent to pay a certain amount Ext.P2, in my view is only an 'agreement'. I also bear in mind that as stated in _Surendra Prasad Narain Singh v. Sri. Gajadhar Prasad Sahu Trust Estate and Others_ (supra) violation of the terms or conditions of the agreement as per Ext.P2 gives the parties, though it is not specifically stated in the agreement a right to sue for recovery of damages from the defaulting party. A further fact to be noted is that the agreement is terminable on the part of either of the parties at any time, the only condition being that three months' prior notice has to be given. Section 2(a)(ii) of the Act in the above circumstances has no application. Clause (I) also has no application as Ext.P2 does not provide that obligation to pay the amount shall be void if a specified condition is performed or not performed. Learned Sub Judge was not correct in holding that Ext.P2 is a bond. As such Ext.P1, order dated 19.03.2010 is liable to be set aside. I hold that Ext.P2 is only an agreement, nothing less, nothing more and is not liable to stamp duty as a bond.” 6. Sri.Eldho Paul, learned counsel appearing for the petitioner has also relied upon the legal proportion laid down by this Court in **Radha v. Sankaranarayanan** [2007 (1) KLT 20] to support his OP(C) : 416 of 2018 -:5:- ## plea that Ext.A1 is only an agreement and not bond. Paragraph 5 of the above said decision of this Court reads as follows : “5. The recitals in the document clearly establish that Rs.80,000/- was borrowed by respondent from petitioner prior to the execution of the agreement. Under the agreement respondent only undertook to repay the existing liability within a time frame. It does not create a new obligation. Instead it only reiterates the liability to pay the pre-existing liability. Even without the said agreement, petitioner is entitled to sue for realisation of the amount borrowed earlier. The respondent executant need not be sued, for the amount upon the strength of that instrument. Unfortunately the court below followed the decision in _Gopakumar_ 's case where the legal position was correctly settled in _Mathai Mathew_ 's case. Ext.P2 order is therefore bad.” 7. This court is not inclined to consider the merits of the contentions raised by the petitioner in support of his plea that Annexure A1 document is an agreement and not bond. Though Ext.P4 order contains six paragraphs, the provisions in Annexure A1 agreement is quoted in paragraph 5 and paragraph 6 alone contains the reasons arrived at by the trial court. Paragraph 6 of Ext.P4 order reads as follows : “6. From the above portion of Ext.A1, it can seen that it is OP(C) : 416 of 2018 ## -:6:- not an acknowledgement of a pre-existing obligation, but it creates an obligation by itself. It is found that the proposed Ext.A1 comes within the definition of 'bond'. Therefore the plaintiff ought to have remitted stamp duty as provided under item No.13 of the Schedule to the Stamp Act (Kerala). Obviously, no such stamp duty has been remitted, as a consequence of which Section 33(1) of the Act is to be followed.” 8. From a reading of the impugned Ext.P4 order, more particularly paragraph 6 thereof, it can be seen that no proper reasonings are given by the trial court for justifying its conclusion that Annexure A1 document is a bond and not an agreement. None of the contentions urged by the petitioner has been even remotely adverted to and considered by the trial court. For this reason alone, the matter is to be remitted back to trial court concerned. For that purpose there is no necessity to issue notice to the respondents, as that party would be heard by the trial court, while rendering decision after the remit. To facilitate such a remit, it is ordered that the impugned Ext.P4 order dated 08.01.2018 will stand set aside and the matter will stand remitted before the court below considered for consideration afresh. Learned trial court will hear both sides afresh and then to take a considered decision on the issue as to whether OP(C) : 416 of 2018 -:7:- Annexure A1 document is an agreement or bond. Both sides will be at liberty to give written submissions in respect of their respective pleas. The written submission of the parties should be submitted within 10 days. The trial court shall pass orders on the issue without much delay. The petitioner will produce a certified copy of this judgment before the trial court for necessary information. With these observations and directions, this Original Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** ttb