144-NLR-NLR-V-39-FERNANDO-v.-PEIRIS-et-al.pdf
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FERNANDO A.J.—Fernando v. Peiris.
1937Present; Fernando A.J.
FERNANDO v. PEIRIS et al.
207—-C. R. Panadure, 5,491.
Stamps Ordinance—Bond insufficiently stamped—Admission in evidence—Objection in appeal—Ordinance No. 22 of 1909, ss. 36 and 37 (2).
Where a document has been admitted in evidence in the Court of firstinstance the admission of the document cannot be questioned in appeal.
Where the document is insufficiently stamped the Court of Appealmay take'appropriate action in terms of section 37 (2) of the StampsOrdinance.
A
PPEAL from a judgment of the Commissioner of Requests,Panadure.
L. A. Rajapakse (with him Soorasangaram), for defendant, appellant.
P. J. Kurukulasuriya, for plaintiff, respondent.
Cur. adv. vult.~
July 7, 1937. Fernando A.J.—
The main point that was argued by Counsel for the appellant was thatthe document P 1 on which, the plaintiff brought this action was a bond,and as such has not been properly stamped in terms of item. 15b of theSchedule to the Stamp Ordinance. That schedule requires the bond tobe stamped with a stamp of Re. 1 whereas the stamp affixed on the docu-ment was only 50 cents.
Counsel for the respondent argues that in view of the provisions ofsection 37 of the Stamp Ordinance, it is no longer open to this Court toquestion the admission of the document. The , effect of that section is inmy opinion that once a document has been admitted in the Court of firstinstance, the admission of such document cannot be questioned in theCourt of Appeal, but if the Court of Appeal is satisfied that the documentis not sufficiently stamped, then action may be taken in terms of section37 (2) which enables the Court to send the document to the Commissionerof Stamps for necessary action. The reason appears to be that where adocument has not been sufficiently stamped, the loss to the revenue can
SOERTSZ J.—Siriwardene v. Vanderstraaten.
527
be recovered by appropriate action, but as between the parties, thevalidity of the document cannot be questioned. Section 36 providesthat the Court of first instance may, if satisfied that the stamp is insuffi-cient, allow the document to be admitted in evidence on payment of thedeficiency of stamp duty and a penalty, and as long as the party producingthe document is prepared to pay the deficiency and the penalty, thedocument must be admitted, and the rights of the parties determined onsuch document. The position of the parties in the Appeal Court isexactly the same, and although the Appeal Court may order the necessarysteps to be taken for the recovery of the deficiency, the action cannot bedismissed because of such deficiency. The principle of law is clear, andI do not think it necessary to discuss the authorities which were citedbefore me.
The document has been drawn up in the form of a bond, but it has notbeen notarially attested as is usual with bonds conditioned for the pay-ment of mon'ey. The amount of the deficiency according to the Counselfor the appellant is only 50 cents and I do not think this is an appropriatecase for action under section 37 (2). I would accordingly dismiss theappeal with costs.
Appeal dismissed.