Report No. 67
33.1. Article 15-Conflict. of views as to words "not otherwise provided for".-
Article 15 levies duty on a bond. We are not concerned now with the case law as to the meaning of this expression-a matter which we have already dealt with while considering the definitions. Nor do we pause to consider the details of the rate structure as given in the article. Confining ourselves to the text of the article, we note that there is a difference of opinion as to the interpretation of the words "not being otherwise provided for by this Act," which occur in this article. According to one view1 these words mean "not being provided for by any other provision of this Act dealing with bonds". According to this view, it is only where the other provision of the Act (under which the instrument falls) deals with bonds, that the applicability of this article to the instrument is excluded. It may be noted that there are, in the Schedule, articles dealing with bonds of specific types e.g., Administration-bond (No. 2), Bottomry bond (No. 16), etc. According to this view, it is only where the instrument falls under one of those articles dealing with specific types of bonds that it can be held to be "otherwise provided for" within the meaning of Article 15.
The other view takes the words "not otherwise provided for" in an unrestricted sense, and simply as meaning, "not provided for in any other part of the Act." According to this view, Article 15 will not apply to an instrument falling within any other article, irrespective of the question whether such other article deals with bonds or not.2
1. L.N. Sugar Factory, Pilibhit v. Moti, AIR 1941 All 243 (258, 266) (per Verma and Mulla, JJ-).
2. L.H. Sugar Factory, Pilibhit v. Moti, AIR 1941 All 243 (254, 274) (per Bajpai and Dar, JJ.).
33.2. To illustrate the controversy, let us take an instrument which amounts to a bond as defined by section 2(5) and also to a mortgage deed (Article 40). According to the first view, such an instrument is not "otherwise provided for by this Act", and can, therefore, fall under Article 15, while, according to the second view, the instrument must be regarded as "otherwise provided for by this Act" and, therefore, as not being within the scope of Article 15.
Although the express exemption of "debenture" and the Note at the end of the article would seem to support the first view, we are of the opinion that the second view is preferable, because if a document is covered by a specific entry-in whatever form-it should not be regarded as a bond. Such a construction is more in consonance with the general scheme and intendment of the Act, and with the rule of construction that the specific must exclude the general.
It is, in our opinion, desirable to clarify the position, by giving effect to the second view. We, therefore, recommend that for the words, "not being otherwise provided for by this Act or by the Court Fees Act, 1870", the words "not being otherwise provided for by any provision of the Act whether or not relating to particular types of bonds or by the Court-Fees Act, 1870, or any enactment corresponding to that Act in force in any part of India should be substituted in Article 15.
We may add that the views expressed in response to our Questionnaire1 have, in general favoured such an amendment.
1. Question 83.