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2002 DIGILAW 922 (AP)

L. Rama Seethamma v. Telugu Solipuram Narasimha

2002-07-26

GHULAM MOHAMMED

body2002
GHULAM MOHAMMED, J. ( 1 ) THIS Civil Revision case is filed by the defendant-petitioner against the order passed in I. A. No. 410 of 1998 in O. S. No. 29 of 1996, on 19th August, 1999 by the learned senior Civil Judge, Nagerkurnool. ( 2 ) THE backdrop of the case that leads to the filing of this revision, is that the plaintiff respondent filed a petition in I. A. No. 410 of 1998 under Sections 38 and 40 of the Indian stamp Act seeking to send the agreement of sale dated 20-4-1991 to the Revenue divisional Officer, Nagarkurnool for levying stamp duty and penalty in the light of the order of this Court in C. R. P. No. 4269 of 1994, dated 25-7-1996 on the ground that he had filed an agreement of sale executed by the petitioner-defendant on ten rupee stamp paper, which is deficitly stamped. As such the said agreement was referred to the revenue Divisional Officer, Nagarkurnool for impounding. After impounding, the said agreement was sent back to the Court. The court fee Examiner of this Court issued a check slip under Section 47-A of the Stamp act, which was challenged before the Court below, which has held that the check slip is correct. Aggrieved by the same, the plaintiff respondent filed C. R. P. No. 4269 of 1994 before this Court and the same was dismissed holding that the document falls under Section 20 of Schedule 1-A of Stamp act. As such, the stamp duty and penalty has to be paid as on agreement of sale under article 47-A of the Stamp Act. ( 3 ) ON the other hand, the defendant petitioner filed counter contending that the petition is not maintainable in law. When the Court below upheld the check slip issued by the Court Fee examiner, the plaintiff-respondent is liable to pay the stamp duty and penalty. The question of again sending the document to the Revenue divisional Officer, does not arise. This petition is filed only to drag on the proceedings. This is a suit based on document and the suit should have been numbered after payment of stamp duty and penalty. The plaintiff-respondent has no option except to make the payment of rs. 35,000/ -. The question of again sending the document to the Revenue divisional Officer, does not arise. This petition is filed only to drag on the proceedings. This is a suit based on document and the suit should have been numbered after payment of stamp duty and penalty. The plaintiff-respondent has no option except to make the payment of rs. 35,000/ -. ( 4 ) ON hearing both sides, the trial Court having held that as per the order of this court in C. R. P. No. 4269 of 1994, the suit agreement attracts computation of stamp duty under Section (sic. Article) 47-A of the stamp Act but not under Article 6 of schedule 1-A and the order of the Revenue divisional Officer for collection of stamp duty and penalty of Rs. 55/-, is not final, but that does not mean that it has shut the liberty of the plaintiff-respondent to get (sic. send) his suit document to the Revenue divisional Officer, allowed the petition directing the agreement of sale dated 20-4-1991 to be referred to the Revenue divisional Officer for impounding under section 38 (2) and 40 of Stamp Act by following the order of this Court in C. R. P. No. 4269 of 1994. Having aggrieved by the same, the present C. R. P. is preferred by the defendant-petitioner. ( 5 ) HEARD Mr. P. Yadagirirao, the learned counsel for the defendant-petitioner and mr. K. Somakonda Reddy, the learned counsel for the plaintiff-respondent. ( 6 ) THE learned counsel for the defendant-petitioner would contend that the impounding of the duty and penalty under section 40 (l) (b) of Stamp Act by the revenue Divisional Officer, was not correct. Since the agreement of sale in question coupled with delivery of possession, the stamp duty payable thereon, shall be equivalent to that of a sale deed under article 47-A of the Indian Stamp Act and in pursuance of which, the Court Fee Examiner issued a check slip imposing stamp duty and penalty at Rs. 20,460/ -. Since the agreement of sale in question coupled with delivery of possession, the stamp duty payable thereon, shall be equivalent to that of a sale deed under article 47-A of the Indian Stamp Act and in pursuance of which, the Court Fee Examiner issued a check slip imposing stamp duty and penalty at Rs. 20,460/ -. He would further contend that the Revenue Divisional officer has not issued any certificate as required under the provisions of Sec. 40 (l) (a) of the Indian Stamp Act, and, as such, it does not attain its finality and in the circumstances, the check slip issued by the examiner of Court Fee, is correct and that the C. R. P. 4269 of 1994 filed by the plaintiff- respondent challenging the Check slip issued by the Court Fee Examiner, was dismissed by this Court, and, as such, the petition to send the document in question once again to the Revenue Authorities, is not maintainable. Therefore, the trial Court is not justified in allowing the petition to send the document to the R. D. O. In support of his contention, he relied on a decision of this court reported in Shaik Davood Saheb v. Y. Rama Murthy, wherein it is held thus:"section 38 (2) of the Indian Stamp Act does not come in aid of the revision petitioner. Section 33 (1) of the Indian stamp Act imposes a duty on the person having bylaw or consent of parties authority to receive evidence, to impound the document if it appears to him that such a document is not duly stamped. The learned Rent Controller is therefore perfectly justified in impounding the document and admitting the document in evidence upon payment of stamp duty and penalty as provided by Section 35 of the Indian Stamp Act. Section 33 (1) and 38 (1) of the Indian Stamp Act are attracted in this case, but not Sec. 38 (2) of the Indian Stamp Act. " ( 7 ) IN the circumstances of the case, the above decision has no application to the facts of the case on hand. Section 33 (1) and 38 (1) of the Indian Stamp Act are attracted in this case, but not Sec. 38 (2) of the Indian Stamp Act. " ( 7 ) IN the circumstances of the case, the above decision has no application to the facts of the case on hand. ( 8 ) AS against this, the learned counsel for the plaintiff-respondent would contend that the trial Court is justified in ordering sending of the document to the Revenue divisional Officer for impounding and the provisions of Section 38 (2) or 40 of the Act, do not come in the way of sending the document to the Revenue Authorities and apart from that, under the said provisions, the Court cannot compel the party to pay the deficit stamp duty and penalty and there is no other option except to send the document to the Revenue Authorities. ( 9 ) I have perused the impugned order and as well as the order passed by this Court in C. R-P. No. 4269 of 1994. ( 10 ) THE relevant portion at paragraph 9 of the order in C. R. P. No. 4269 of 1994, reads as under:"it is the definite case of the plaintiff and also as per the recitals in the agreement of sale, that possession was also delivered along with execution of the agreement of sale. Therefore, on the facts of this case, no finality can be attached to the decision of the revenue divisional Officer as to the stamp duty payable on the agreement of sale. The authority, in this case, the Court fee examiner can certainly point out the defect in the order of the Revenue divisional Officer, as he did not issue certificate under Section 40 (1) (a) and he considered the case under Sec. 40 (l) (b ). This document squarely falls Within the scope of Article 20 of Schedule 1-A of the Act. In such a case, the proper stamp duty is on the had volarem" stamp required for conveyance of sale under Article 47-A. Further, Art. 47-A makes it clear that an agreement of sale followed by delivery of possession shall be chargeable as sale under this article. Therefore, this agreement of sale is chargeable under the Stamp Act, as indicated above. In view of the above discussion the check slip issued by the Court fee Examiner cannot be challenged. Therefore, this agreement of sale is chargeable under the Stamp Act, as indicated above. In view of the above discussion the check slip issued by the Court fee Examiner cannot be challenged. There is no infirmity in the order of the lower Court. " ( 11 ) IT is seen from the above order, that the C. R. P. has been preferred challenging the check slip issued by the Court Fee examiner who pointed out the defect in the order of the Revenue Divisional Officer, and, it is found that the check slip cannot be challenged. ( 12 ) IT is seen from the check slip issued by the Court Fee Examiner that,"the suit document i. e. , agreement of sale dated 20-4-1991 for Rs. 32,000/- is liable to stamp duty and penalty under article 47-A of Amended Stamp Act 17 of 1986. Under explanation to Art. 47-A of the Act, an agreement to sell followed or evidencing delivery of possession of the property agreed to be sold shall be chargeable as a "sale" under this Article and the instrument of sale in pursuance of such agreement subsequently executed shall be chargeable with a duty of Rs. 5/ -. So, the stamp duty and penalty has to be levied on the agreement of sale dated 20-4-1991 as stated below xxxxxx" ( 13 ) IN the check slip, it is pointed out as to the nature of the document chargeable as a sale. But, that does not mean that the liberty of the party is shut from availing the privilege of forwarding the document to the revenue Authorities. Under the provisions of Section 38 (2), a duty is cast upon the person impounding an instrument, to send the same to the Collector. But, that does not mean that the liberty of the party is shut from availing the privilege of forwarding the document to the revenue Authorities. Under the provisions of Section 38 (2), a duty is cast upon the person impounding an instrument, to send the same to the Collector. In case of insufficiently stamped document and the request of the party to send the same to the collector, there is no option for the Court except to send the same to the Revenue authorities and in the said circumstances, the Court cannot compel the party to pay the deficit stamp duty and penalty inasmuch as even in case of collection of deficit stamp duty and penalty by the Court, the same shall also be sent to the Revenue Authorities along with the document under Sec. 38 (1) of the Act and apart from that, until and unless the deficit stamp duty and penalty is paid, the said document cannot be admitted in evidence. Contrary to this, if this exercise is done by referring the document to the revenue Authorities prior to collection of such amount by the Court itself, no prejudice-would be caused to the other side since it is the duty cast upon the Court to see as to the admissibility or otherwise of the document in question, in evidence after fulfilling the formalities and as well as the revenue Authorities to see whether such a document is chargeable or not by adopting the procedure as contemplated under the provisions of Section 40 of the Act. In the circumstances, the Court cannot compel the party to pay the deficit stamp duty and penalty. ( 14 ) IN a similar situation, the similar issue involved in this C. R. P. has been well considered in the judgments of this Court. In the circumstances, the Court cannot compel the party to pay the deficit stamp duty and penalty. ( 14 ) IN a similar situation, the similar issue involved in this C. R. P. has been well considered in the judgments of this Court. In n. Jagannadham v. Managamma wherein it is held thus:"stamp Act, 1899-Sections 38 and 40- documents found insufficiently stamped sought to be let in evidence-If the party requires the documents to be sent to Collector by Court, it has no option but to send them-Court cannot compel the party to pay deficit stamp duty and penalty and have them admitted in evidence" ( 15 ) IN Chintalapudi Annapurnamma v. Andukuri Punnayya Sastry, a Division Bench of this Court held thus:"stamp Act 1899-Sections 35 and 38- court is competent to impound the document and impose duty and penalty payable on the document-It is upto the party producing the document to pay the duty and penalty and get it admitted-If the party does not want to pay the duty and penalty as determined by Court, it is open for him to ask the document to be sent to the Collector but till the duty and penalty is determined by the Collector and paid by the party the document cannot be admitted in evidence- however, the Court cannot compel the party to pay the duty and penalty determined by it and get the document admitted in evidence. " ( 16 ) IN Indurupalli Ramanaiah v. Somisetti Radhakrishnaiah, it is held thus:"indian Stamp Act-Sections 33, 35, 38, 40 and 42-Scope and effect-When the party requests the impounding Court to send the document which is not duly stamped, but is intended to be admitted in evidence, to the Collector under Section 38 (2), the Court cannot refuse to send it to the Collector. " ( 17 ) IN B. V. R. Reddy v. Adoni Co-op Central Stores Ltd. this Court held thus:"if the party filing the document wants it to be admitted in evidence, then only the Court shall collect the duty and penalty and then admit it in evidence. But if the party instead of requiring the document to be admitted in evidence merely wants the Court to send it to the collector to be dealt with under section 40 the Court has no option but to send it to the Collector as provided in Section 38 (2 ). But if the party instead of requiring the document to be admitted in evidence merely wants the Court to send it to the collector to be dealt with under section 40 the Court has no option but to send it to the Collector as provided in Section 38 (2 ). The Court cannot compel the party to pay duty and penalty and have it admitted in evidence. " ( 18 ) IN the facts and circumstances of the case, I am of the considered view that a duty is cast upon the Court to see as to the admissibility of the document in evidence under the provisions of Section 33 of the Act and at the same time, it is also an obligation on the part of the party who produces a document not duly stamped, for admission in evidence, to pay the stamp duty and penalty and unless and until the party pays the same, such a document cannot be admitted in evidence. In such a situation, if the party requires the Court to refer the document to the Revenue Authorities for final assessment of the stamp duty and penalty, there is no other go except to forward the same and at this stage, he cannot be compelled to pay the stamp duty and penalty as imposed by the Court. ( 19 ) IN this view of the matter and in the light of the principles laid down by this court, I am of the considered view that the trial Court is justified in referring the document to the Revenue authorities as indicated in the impugned order, and, therefore, it does not suffer from any legal infirmities and as such, it does not warrant any interference by this Court. ( 20 ) ACCORDINGLY, this C. R. P. is dismissed and the impugned order is confirmed. No costs.