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Rajasthan High Court · body

2010 DIGILAW 1580 (RAJ)

Indralal v. Saligram

2010-08-30

SANGEET LODHA

body2010
Hon'ble LODHA, J.—This writ petition is directed against order dated 21.4.2010 passed by the Additional District Judge (Fast Track) No. 4, Udaipur in Civil Original Case No. 22/08, whereby the preliminary issue regarding admissibility in evidence of a document i.e. agreement to sell dated 7.6.2002, has been decided in favour of the respondents/defendants and against the petitioners/plaintiffs. 2. The petitioners /plaintiffs filed a suit for specific performance of the contract on the strength of an agreement to sell dated 7.6.2002, alleged to have been executed by the respondents/defendants in favour of the petitioners/plaintiffs in respect of the suit land. 3. The suit is being contested by the respondents/defendants by filing a written statement thereto. The respondents/defendants raised an objection regarding the admissibility of the said document on the ground that the same is not duly stamped. 4. On the basis of the pleading of the parties, the Trial Court framed the issue regarding the admissibility of the document in the following terms: ^^D;k fnukad 7-6-2002 ds vuqca/k ij LVkEi 'kqYd i;kZIr ugha gS vxj ,slk gS rks bldk okn ij D;k vlj gSA** 5. The respondent/defendant No. 1 filed an application u/S. 35 of the Rajasthan Stamp Act, 1998 (the 'Act'), praying that since, the document sought to be exhibited in evidence is sufficiently stamped, the same may not be taken on record. The petitioners/plaintiffs preferred an application u/S.39 of the Act, praying that the document may be impounded and be re-ferred to the District Collector for determination of the stamp duty payable. 6. The applications preferred by the parties so also the issue No. 5 (ibid) have been decided by the Trial Court by the order impugned in favour of the respondents/defendants against the petitioners/plaintiffs, hence, this petitions. 7. After due consideration, the Trial Court arrived at the finding that the document in question is not duly stamped, therefore, it is not admissible in evidence. The prayer of petitioners/plaintiffs for impounding the document and to refer the same to the Collector (Stamp) for determination of stamp duty payable has been declined by the Court below on the ground that petitioners/plaintiffs have not expressed their readiness willingness to pay the deficient stamp duty and penalty, therefore, the question of referring the document to the District Collector does not arise. 8. 8. Though before the Trial Court in the application filed the petitioners/plaintiffs have not taken the stand that they are ready and willing to pay the deficient stamp duty and penalty but in additional affidavit filed before this Court on behalf of the petitioners/plaintiff's it is stated that the plaintiffs are ready and willing to pay the deficient stamp duty and penalty as per the law. 9. It is contended by the learned counsel for the petitioners that the Court has seriously erred in deciding the question regarding admissibility of the document as preliminary issue. Learned counsel submitted that even if the petitioners/plaintiffs has not expressed their readiness and willingness to pay the deficient stamp duty and penalty, the Court below was under an obligation to impound the document and refer the same to the District Collector (Stamp) for determination of deficient stamp duty and penalty in accordance with law. Learned counsel reiterated that the petitioners/plaintiffs are ready and willing to pay the deficient stamp duty and penalty and, therefore, the document cannot be held to be inadmissible in evidence. 10. On the other hand, learned counsel appearing for the respondent No. 1 in all fairness submitted that the issue with regard to admissibility of the document and prayer of the petitioners/plaintiffs to send the document for determination of the deficient stamp duty and penalty has not been properly dealt with by the Court below. Learned counsel submitted that on the facts and in the circumstances of the case, the Court was required to pass the order in accordance with the law laid down by the Hon'ble Supreme Court in the matter of Chilakuri Gangulappa vs. Revenue Divisional Officer, Madanapalle & Anr., AIR 2001 SC 1321 , In Chilakuri Gangulappas case (supra) the Hon'ble Supreme Court while dealing with an issue of admissibility in evidence of a document insufficiently stamped, after considering various provisions of Indian Stamp Act, as amended by State of Andhra Pradesh opined that: "....In the present case the Trial Court should have asked the appellant, if it finds that the instrument is insufficiently stamped, as to whether he would remit the deficient portion of the stamp duty together with penalty amounting to ten times the deficiency. If the appellant agrees to remit the said amount the Court has to proceed with the trial after admitting the document in evidence. If the appellant agrees to remit the said amount the Court has to proceed with the trial after admitting the document in evidence. In the meanwhile, the Court has to forward a copy of the document to the Collector for the purpose of adjudicating on the question of deficiency of the stamp duty as provided in Section 40(1)(b) of the Act. Only if the appellant is unwilling to remit the amount the Court is to forward the original of the document to the Collector for the purpose of adjudicating on the question of deficiency of the stamp duty. 11. Coming to the provisions of the Act, it is to be noticed that as per provisions of Sec. 37, every person having by law or consent of the parties, authority to receive evidence and every person incharge of the public office except an officer or police before whom any instrument chargeable to duty is produced and if it appears to him that such instrument is not duly stamped shall impound and refer the same to the Collector for the determination of the stamp duty together with the penalty payable. Thus, it is the duty of the Court to impound the document not duly stamped and make a reference to the Collector for determination of the stamp duty and penalty payable, notwithstanding the fact that the party concerned has not expressed his readiness and willingness to pay the deficient stamp duty and penalty. 12. Section 39 of the Act mandates that no instrument chargeable with a duty under the Act shall be admitted in evidence for any purpose by any persons having by law or consent of the parties authority to receive evidence shall be acted upon registered or authenticated by any such person or by any public officer unless such instrument is duly stamped. However, by virtue of proviso to Sec. 39 subject to all just exception, the instrument can be admitted in evidence on the duty with which same is chargeable or in case of instrument insufficient stamped, the amount required to make up such duty and a penalty of Rs. 100 or ten times of the amount of deficient portions thereof, whichever is higher. 13. 100 or ten times of the amount of deficient portions thereof, whichever is higher. 13. Further, Sec. 42 which prescribes the procedure to deal with the impounded instrument provides that when the person impounding instrument u/Sec. 37 has by law or consent of the parties authority to receive evidence admits such instrument in evidence upon payment of penalty as provided by Sec. 39 or the duty as provided by Sec. 41 shall send to the Collector an authenticated copy of the instrument together with the certificate in writing, stating the amount of duty and penalty levied in respect thereof and shall sent such amount to the Collector or to such a person appointed in this behalf. As per provisions of sub-sec. (2) of Sec. 41, in all other case, the instrument impounded shall be sent in original to the Collector. However, as per proviso to sub-sec. (2) of Section 42, a person who produce the instrument, or any party interested is prepared to pay the cost of preparing a copy of the instrument then only such authenticated copy shall be sent to the Collector and then the Collector shall take action on the authenticated copy as if it were instrument original. 14. A conjoint reading of provisions of Sec. 39 & 42 of the Act makes it abundantly clear that if the petitioners/plaintiffs are ready and willing to remit the amount of deficient stamp duty and penalty as provided by proviso to Sec. 39 of deficient stamp duty and penalty as provided by proviso to Sec. 39 of the Act then, on payment of such duty and penalty, the document has to be admitted in evidence by the Court and only an authenticated copy thereof alongwith a certificate in writing stating the amount of duty and penalty levied and such amount recovered is required to be sent to the Collector (Stamp). 15. Thus, on the facts and in the circumstances of the case, in considered opinion of this Court, the Trial Court has seriously erred in refusing to refer the document to the Collector (Stamp) for determination of the deficient stamp duty and the penalty payable solely on the ground that the petitioners/plaintiffs have not expressed their readiness and willingness to pay the deficient stamp duty and penalty. However, in view of the provisions of Sec. 39(1) of the Act, a document not duly stamped cannot be admitted in evidence unless the duty with which same is chargeable or the deficient duty and the penalty as determined by the Collector (Stamp) under the provisions of Sec. 37 or in terms as provided by proviso to Sec. 39, is duly paid. 16. For the aforementioned reasons, the order impugned passed by the Court is not sustainable in the eye of law and same deserves to be set aside. The matter deserves to be remanded to the Court below for consideration afresh in light of the position of law discussed above. 17. Accordingly, the writ petition is allowed. Order impugned dated 21.4.2010 passed by the Court below is set aside. The Trial Court is directed to decide the applications preferred by the parties afresh keeping in view the position of law discussed as above. No order as to costs.