- D经理提出的抗辩点(a) 由于租约没有付印花税，租约在印花法令第52条文下，是不可以被法庭接纳为证据的 （b）租约是虚构和不是一份真诚的租约。
- 印花法令第41条文注明，此类文件必须在签署此文件之前或者线束文件的时候付印花税，不然此文件是不能被法庭接受为呈堂证据（印花法令第52条）。但是这个约束并不是绝对的 （印花法令第52(a)条）。只要你在之后付清印花税和罚款，文件就能被法庭接纳。
- 但是，P在法庭的审讯过程中付清了租约的印花税和罚款，所以D 提出的抗辩已经无效。
- The defendant (D) was the registered owner of a piece of land on which was erected three warehouses known as Blocks A, B and C (“the warehouses”). A receiver and manager (‘R&M’) was appointed by Kuwait Finance House Bhd (‘KFH’) over the charged assets of D under a debenture. Blocks A and B were tenanted by Padiberas Nasional Bhd (‘Bernas’) while Block C was unoccupied and in the possession of the R&M.
- P alleged that vide a tenancy agreement, they had leased the warehouses from D prior to D being placed under receivership. Hence, they contended that the tenancy agreement was binding on the R&M who had knowledge of the tenancy. Consequently, the plaintiff sought, inter alia, specific performance of the tenancy agreement and an order that the R&M be at liberty to sell the property subject to the plaintiff’s rights under the tenancy agreement.
- The defence raised by D: (a) is not a duly stamped instrument as ad valorem duty was not paid therefore the tenancy agreement was inadmissible under Section 52 of the Stamp Act 1949 (‘SA’); (b) the tenancy agreement was a sham and thus, not a genuine document.
- Under s 52(1)of the Stamp Act 1949 (“the Act”), no instrument chargeable with duty shall be admitted in evidence unless such instrument is duly stamped.
- A tenancy agreement is an instrument falling under Section 4 of the Act. It is an instrument chargeable with duty. It is provided under Item No 49 of the First Schedule (Section 4) under the description ‘Lease or Agreement for Lease that a tenancy agreement attracts payment of ad valorem stamp duty’.
- All instruments chargeable with duty must be stamped before or at the time of its execution as provided under Section 41 failing which it will not be admitted under Section 52(1)of the Act. The prohibition against admissibility of an instrument for being not duly stamped is, however, not an absolute prohibition (proviso (a) to s 52(1)). It is conditional upon payment of a duty or a penalty, if any, under Section 43 and 47A. In this case, the tenancy agreement is an instrument that should have been brought to the collector of stamp duties for adjudication of stamp duty under Section 36. After the duty had been assessed by the collector, the tenancy agreement must be stamped within 14 days pursuant to Section 40.
- The ad valorem stamp duty must be paid in accordance with the Act in the manner described above. Failure to pay the duty or the penalty prevents the use of the tenancy agreement in this proceedings. As the tenancy agreement is not a duly stamped instrument, it is the duty of this court under Section 51 to impound the tenancy agreement.
- Accordingly, the tenancy agreement was impounded. The plaintiff subsequently paid the ad valorem stamp duty and penalty on the tenancy agreement thus it was admitted as evidence.
- Even the tenancy agreement was admitted as evidence, it does not of itself mean that it is a genuine tenancy agreement. It only relates to the fact that the tenancy agreement exists; the question of whether it is a sham or not is for the court to determine on the facts as presented in the evidence.
- Based on the circumstances in this case, the court is driven to the conclusion that the tenancy agreement is a sham. It was a scheme between associated companies. It was created with the ulterior motive to deceive the R&M into letting Block A, B and C to P thereby obstructing or frustrating the work of the R&M in realising the charged assets of D under the debenture.
Source: Octville Golf Properties Sdn Bhd v Uniwheels Sdn Bhd (appointed receivers and managers)  8 MLJ 558. JB HC.
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