Trideshwar Dayal v. Board of Revenue at Allahabad — 1992 DIGILAW 1271 (ALL)

JUDGMENT Sudhir Narian, J. - The present writ petition is directed against the order dated 4-5-1992 passed by the Chief Controlling Revenue Authority, U.P. Allahabad (hereinafter referred to as the 'Authority') in Revisions No. 334 (5) of 1991-92 directing the Collector (Stamp), Sitapur (hereinafter referred to as the 'Collector') directing to evaluate the property, fix stamp duty and realise the same in compliance of the order passed by the Supreme Court in Civil Appeal No. 5055 of 1989 Trideshwar Dayal and another v. Maheshwar Dayal and others. 2. The facts in brief are that the petitioner and respondent No. 3. referred the dispute to Sri Sheo Dularey Srivastava-Arbitrator to partition the property consisting of residential house, agricultural land and other properties. The award dated 9-10-1973 given by the Arbitrator was filed before the Civil Judge, Sitapur, for making it rule of the Court. Respondent No. 3 filed an application praying that the award be made rule of the Court. The petitioner filed an objection and one of the ground was that since the award was written of unstamped paper and was not registered it was inadmissible in evidence and as such the award cannot be made rule of the Court. The Civil Judge accepted the objection. A submission was made before the Civil Judge that the Stamp may be accepted with the penalty under Section 35 of the Indian Stamp Act, 1899. The Civil Judge did not accept the prayer for accepting the stamp duty under Section 35 of the Act out in the operative portion be passed the following order on 18-3-1976. "Application for making award rule of the court is rejected. Objection of opposite parties 1 and 2 is allowed. It is made clear that the award is vitiated for want of compulsory registrations and property stamp duty, same is impounded. Let award be sent to Collector for necessary action." 3. The respondent No. 3 filed First Appeal No. 38 of 1976 - Maheshwar Dayal v. Neel Kanteshwar Dayal, against the said order before the High Court which was dismissed by judgment dated 8th July, 1981, Maheshwar Dayal filed Special Appeal before the Supreme Court which was dismissed on 18th April, 1989. 4. The civil Judge by order dated 18-3-1976 impounded the award with a direction to sent it to the Collector for necessary action. It appears that the award was not sent to the Collector. 4. The civil Judge by order dated 18-3-1976 impounded the award with a direction to sent it to the Collector for necessary action. It appears that the award was not sent to the Collector. Respondent No. 3 filed an application before the Collector praying that in pursuance of the order passed by the Civil Judge on 18-3-1976 necessary action be taken in terms of the directions given in the said order and stamp duty be realised. The Collector issued notice to the petitioner. The petitioner filed objection taking various pleas that the stamp duty cannot be realised. The Collector by order dated 15-7-1983 repelled all the objections directing for sending the award for evaluating the property and for payment of stamp duty. The petitioner filed revision No. 383 of 1983-84 before the respondent No. 1. The revisions was allowed by order 13-6-1984 respondent No. 3 filed writ petition No. 12322 of 1984 which was allowed and the Collector was directed to deal with the claims of he parties in accordance with law. The petitioner filed Special Leave Petition before the Supreme Court. Leave was granted and the case was numbered as Civil Appeal No. 5055 of 1989. It was disposed of by order dated 19-2-1989 with the following direction: "The orders of the Collector dated 15-7-1983 and 22-7-1983 must, therefore, in the circumstances, be held to have been passed as the follow up steps in pursuance of the civil court's direction dated 18-3-1976 and no valid objection can be taken against them. The Collector, therefore, shall have to proceed further for realisation of the escaped duty." After the decision of the Supreme Court the Collector had only determine value of the property fix the amount of stamp duty and to realise the same with penalty in accordance with law and remit the award to the Civil Judge in accordance with Section 40 (3) of the Act. The Collector in pursuance of the order of the property, stamp duty and penalty be realised. The petitioner filed revisions against this order before respondent No. 1 which was dismissed by order dated 17-7-1990 but it was directed that the Collector will afford due opportunity of hearing to the parties. On 20th August, 1990 original award was opened in the presence of the parties. A report was called for and the Dy. Registrar, Lucknow submitted a report on 17-9-1991. On 20th August, 1990 original award was opened in the presence of the parties. A report was called for and the Dy. Registrar, Lucknow submitted a report on 17-9-1991. The petitioner filed objection taking various pleas. The Collector took the view that the Civil Judge had no jurisdiction to impound the award after it had delivered the judgment. There was endorsement of impounding on the original award and in such a situation the stamp duty and penalty cannot be realised from respondent No. 3. Respondent No. 3 filed revision No. 334 (S) of 1991-92 before the Authority, respondent No. 1. The revision was allowed by order dated 4.3.1992 with a direction to the Collector to evaluate the property, fix the stamp duty and realise the same. The petitioner has challenged this order in the present writ petition. 5. The petitioner has raised various contentions. In fact, After the directions given by the Supreme Court nothing was left to be decided by the Collector. The Collector had earlier passed the order summoning the award to fix stamp duty after evaluating the Supreme Court, as stated above, is very clear. The petitioner is barred on the principles of constructive res judicata. A point which could be raised and not raised, cannot be taken in subsequent proceedings. 6. I, however, deal with all the points raised by the learned counsel for the petitioner in seriatim. 7. The first contention of the learned counsel for the petitioner is that the award was not an 'instrument' as defined under Section 2 (14) of the Act. The contention is that a document is an instrument only when the stamp duty is paid and registered or is payable or it can be registered. This argument has no substance. Section 31 (1) of the Act provides : "When any instrument whether executed or not and whether previously stamped or not." It indicated that an instrument may not be stamped previously. There is no condition precedent that a document will be treated as an 'instrument' only when it is stamped. 8. Secondly, a document may be duly stamped and may not be registered. The fact as to whether the document could be registered and should be registered is not a pre-condition for realising the stamp duty or penalty on an instrument. There is no condition precedent that a document will be treated as an 'instrument' only when it is stamped. 8. Secondly, a document may be duly stamped and may not be registered. The fact as to whether the document could be registered and should be registered is not a pre-condition for realising the stamp duty or penalty on an instrument. Thirdly, the award was taken as an instrument by the Civil Judge and the said decisions was affirmed by this Court. This Court while deciding First Appeal No. 38 of 1976 held that : "The impugned award which is an instrument within the meaning of Stamp Act was required to be stamped." Because the award in question was treated as an instrument was impounded under Section 33 of the Act. 9. It was next contended that the document was not chargeable to any stamp duty. Chargeability of an instrument is provided under Section 3 of the Act. Item No. 12 of Schedule I prescribes the stamp duly payable in respect of an award. The Award in question was thus, an instrument and was chargeable with duty. 10. The second submission of the learned counsel for the petitioner is that the award in question in incurably defective and, therefore, it cannot be stamped. He placed reliance upon a case reported in Nani Bulal Saha v. Ram Gopal Saha, AIR 1945 Cal 19. The Court while considering as to whether the award should be remitted to the Arbitrator to re-write on stamp paper had observed: "Want of registration a defect de hors the award or the decisions of the arbitrator, and so in our judgment is not covered by clause (c) of section of 16 (1) of the Arbitration Act, 1940." The matter came up for consideration before Madras High Court in M/s. Wilson and Co. Pvt. Ltd. etc. v. K.S. Lokavinayagam, AIR 1992 Mad 100 , Where with approval the following observations in a case reported in Subramaniam Chettiar v. Rev. Pvt. Ltd. etc. v. K.S. Lokavinayagam, AIR 1992 Mad 100 , Where with approval the following observations in a case reported in Subramaniam Chettiar v. Rev. Divisional Officer, Devakattal, AIR 1956 Mad 454 was quoted : "There is absolutely no doubt that an unstamped or defectively stamped document is not void and that it is effective from the date of its execution though it is stamped properly No. case that I know of can be cited to show that an erroneous stamp would invalidate the deed." The decisions reported in AIR 1945 Cal 19 and AIR 1962 SC 551 were taken into consideration in M/s. Pradeep Trading Co. v. State of Bihar, AIR 1974 Pat 315 and it was pointed out that in view of he decision of the Supreme Court in Bikhabdass v. Bullabhadas, AIR 1962 SC 551 it was opened to the parties to take such steps, if any, as were available, to them at law for curing the defect arisen from the award being can unstamped paper. It was held that though the award cannot be remitted to the Arbitrator for re-writing on stamp paper but the defect of want of stamp can be cured and rectified under the provisions of the Stamp Act and it was observed : "But in my opinion only because the award is not one a stamped paper, it will not be invalid within the meaning of Section 30 of the Act." In M/s. Wilson & Co. Pvt. Ltd., AIR 1992 Mad 100 the court directed to adopt the procedure of impounding the award as prescribed under Section 33 of the Stamp Act and the award was made rule of the Court subject to above directions. The Court has power to impound an instrument under Section 33 (1) of the Act, and such impugned document is to be sent in original to the Collector under Section 38 (2) of the Act. On receiving such an instrument the Collector has to form an opinion under Section 40 (1) (b) of the Act that it is chargeable with stamp duty and is not duly stamped, he shall then require payment of proper duty or the amount required to makeup the same together with penalty if the Collector has dealt with, as provided under Section 40 of the Act he has to return it to the impounding officer under Section 43 (3) of the Act. The moment the stamp duty and the penalty, as determined by the Collector under Section 40 of the Act is paid the defect so far the document not being stamped is removed and the Collector has no jurisdiction to entertain the question whether the document after such stamp duty having been paid is to be registered or not. The question before the Collector was only with regard to the payment of stamp duty. He could not take into consideration any other objection regarding validity of the instrument. The third submission of the learned counsel for the petitioner is that after the decision of the Supreme Court the award which was kept in a sealed cover was broken in the presence of the presence of the parties and there was no endorsement of the Civil Judge, Sitapur indicating the word impounding the award and to send it to the Collector. The mere fact that in the original award the did not endorse the word 'impounded' does not in he present case indicate that the award was not impounded. The Civil Judge had directed that the award be impounded and be sent to the Collector for necessary action. The learned counsel for the petitioner has placed reliance upon Pooran Chand v. Emperor. AIR 1942 Lahore 257 where the Court observed; "Impounding of a document should be held to take place not when verbal order was given by the Court but when it was carried out, that when the document was taken in custody by the Court and the endorsement was made thereon." 11. In the present case the Court had passed specified order impounding the award in question and in pursuance of the said order the award was kept in a sealed cover. The mere fact that the word 'impounded' was not endorsed on the original award does not suggest that the Court did not impound the award in question. 12. The Last submission of the learned counsel for the petitioner is that the Civil Judge had become functus officio after the rejected the application of respondent No. 3 for making the award rule of the Court and thereafter he could no pass the order for impounding the award in question and sending the same for taking action by the Collector. The Last submission of the learned counsel for the petitioner is that the Civil Judge had become functus officio after the rejected the application of respondent No. 3 for making the award rule of the Court and thereafter he could no pass the order for impounding the award in question and sending the same for taking action by the Collector. He relied upon the decisions reported in Inderman Mahton and other v. Thakur Mahton, 1947 Pat 443 ; Pooran Chand v. Emperor, AIR 1942 Lahore 257 ; Union of India v. Prabhu Lal, AIR 1966 Ori 213 ; and Government of U.P. v. Mohd. Amir, 1961 SC 787. In the present case impounding of the award in question was not subsequent to the order passed by the Civil Judge in proceeding under Section 14 of the Arbitration Act and these cases are not applicable to the facts of this case. 13. Another feeble argument was raised that the Civil Judge rejected the prayer of the respondent to pay stamp duty and penalty under Section 35 of the Act and, therefore, the Civil Judge had no jurisdiction to impound the document under Section. 33 of the Act. This submission has no substance. There were two courses open to the Court. The first course was to admit a document into evidence upon payment of duty chargeable thereon and penalty as provided under Section 35 of the Act and sent it forthwith to the Collector and the another was to impound the document under Section 33 of the Stamp Act and, thereafter to send it to the Collector under Section 38 (2) of the Act. The Civil Judge did no exercise the jurisdiction under Section 33 of the Act. Similar view has been taken in Saran Das and others v. Smt. Seetu and others, 1986 (HP) 1 and Narendra Kumar v. Hansraj, AIR 1986 (HP) 75 . 14. In the result, as the writ petition is devoid of any merit, is dismissed with costs.