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2010 DIGILAW 20 (MP)

KU. RACHNA KHARE v. BACHCHOO RAM

2010-01-07

ALOK ARADHE, KRISHN KUMAR LAHOTI

body2010
JUDGMENT ( 1 ) THIS petition is directed against an order dated 7-5-2008 by 1st Additional District Judge, Balaghat in civil suit no. 7-A/2007 by which the trial Court decided the objection of petitioner/defendant in respect of insufficiency of stamp duty on agreement dated 22-11-2005. ( 2 ) LEARNED counsel for petitioner submitted that the order of trial Court is not correct, as it has been passed ignoring the provisions as contained in Article 5 of Schedule 1-A of the Indian Stamp Act, 1899 (hereinafter referred to as 'act' for short ). It is submitted that as per Article 5 (2) (e) of the Act the stamp duty was payable @ 1% of the total consideration of the property set forth in the agreement or memorandum of agreement, but the court below erred in directing recovery of deficit stamp duty on the basis of earnest money paid at the time of agreement and not on the basis of total consideration of the property set forth in the agreement. ( 3 ) LEARNED counsel for respondents opposed the aforesaid contention and submitted that the order passed by the trial Court is just and proper. ( 4 ) TO appreciate the rival contentions of the parties it would be appropriate if the factual position in the case is stated. The petitioner herein is defendant in civil suit No. 7-A/2007 pending before the 1st Additional judge to the Court of Additional District judge, Balaghat, between the parties. The respondents filed a suit for specific performance against the petitioner herein on the basis of an agreement dated 22-11-2005, by which a house property situated on Nazul sheet No. 16-D, plot No. 57 area 268 sq. meter was agreed to be sold, the sale consideration was fixed @ Rs. 225/- per sq. ft. , earnest money of Rs. 2,00,000/- was paid at the time of execution of agreement and remaining consideration was to be paid at the time of sale deed after ascertaining the total consideration on measurement of the house. ( 5 ) BEFORE the trial Court petitioner herein raised an objection that the document agreement, Annexure P-1 of this petition, is on insufficient stamp duty. The trial Court after hearing both the parties found substance in the contention of the petitioner herein and directed the plaintiff to make payment of stamp duty on the amount of earnest money rs. ( 5 ) BEFORE the trial Court petitioner herein raised an objection that the document agreement, Annexure P-1 of this petition, is on insufficient stamp duty. The trial Court after hearing both the parties found substance in the contention of the petitioner herein and directed the plaintiff to make payment of stamp duty on the amount of earnest money rs. 2,00,000/- @ 1% and after deduction the amount of stamp duty already paid Rs. 100/-, the trial Court directed that Rs. 1,900/- is the deficit stamp duty and by imposing penalty 10 times to the duty Rs. 19,000/-, total amount was directed to be paid by the respondents. This order is under challenge in this petition. ( 6 ) TO appreciate the contention of petitioner, relevant provision as contained in article 5 (e) of Schedule 1-A of the Act may be looked into, which reads as under : (e) If relating to sale of immovable property: (i) When possession of the property is delivered or is agreed to be delivered without executing the conveyance the same duty as a conveyance (No. 20) on the market value of the property. (ii) When possession of the property is not given. One per cent of the total consideration of the property set forth in the agreement or memorandum of agreement. ( 7 ) THE aforesaid provision specifically provides that the stamp duty of agreement or memorandum of an agreement when possession of the property is not given shall be @ 1% of the total consideration of the property set forth in the agreement. The aforesaid provision is very clear and provides payment of stamp duty of 1% of the total consideration of the property set forth in the agreement. The trial Court ignoring the aforesaid provision directed payment of deficit stamp duty on the basis of earnest money paid in the agreement. ( 8 ) THE aforesaid order is apparently contrary to the statutory provision as contained in Article 5 (e) of Schedule 1-A of the Act and is not sustainable under the law. As the stamp duty is to be calculated, after calculating the total consideration as set forth in the agreement, we find it proper to remit the matter to the trial Court to pass a fresh order. As the stamp duty is to be calculated, after calculating the total consideration as set forth in the agreement, we find it proper to remit the matter to the trial Court to pass a fresh order. ( 9 ) WHILE considering the question of impounding a document, payment of deficit stamp duty and penalty the trial Court shall look into the legal position as settled by the apex Court in Peteti Subba Rao v. Anumala s. Narendra ( ( 2002 10 SCC 427 ), in which the Apex Court held thus : 6. Mr. M. N. Rao, learned Senior Counsel submitted that the appellant cannot afford to pay the penalty now suggested as the amount is far beyond his capacity. But at the same time, he made a fervent plea that his suit cannot be allowed to be dismissed on the ground of inability to pay the huge penalty amount alone. We find some force in the said plea. In a case where the party fails to pay the penalty suggested by the Court the document impounded has to be sent to the Collector for the purpose of taking further steps in respect of that document as provided in Section 40 of the Act. The Collector has the power to require the person concerned to pay the proper duty together with a penalty amount which the Collector has to fix in consideration of all aspects involved. The restriction imposed on the Collector in imposing the penalty amount is that under no circumstances the penalty amount shall go beyond ten times the duty or the deficient portion thereof. That is the farthest limit which means that only in very extreme situations the penalty need be imposed up to that limit. It is unnecessary for us to say that the Collector is not required by law to impose the maximum rate of penalty as a matter of course whenever an impounded document is sent to him. He has to take into account various aspects including the financial position of the person concerned. 7. In the aforesaid situation we set aside the impugned judgment passed by the trial court as well as the High Court. We direct the trial Court to impound the document as indicated in Section 33 (1) and forward the same to the Collector concerned as envisaged in Section 38 (2) of the Act. 8. 7. In the aforesaid situation we set aside the impugned judgment passed by the trial court as well as the High Court. We direct the trial Court to impound the document as indicated in Section 33 (1) and forward the same to the Collector concerned as envisaged in Section 38 (2) of the Act. 8. We also direct the Collector concerned to complete the proceedings envisaged in section 40 (1) of the Act within a period of one month from the date of receipt of the document. The trial Court shall await the receipt of the certificate of the order passed by the Collector for proceeding further in the suit. In other words the suit will be revived only on receipt of such certificate and the copy of the order of the Collector so passed. " ( 10 ) THE trial Court after passing a fresh order shall follow the law laid down by the apex Court in Peteti Subba Rao (supra) and shall send the documents after impounding under Section 33 (1) to the Collector, as envisaged in Section 38 (2) of the Act. ( 11 ) WITH the aforesaid direction this petition is allowed, with no order as to costs. ( 12 ) C. C, as per rules. Petition allowed. .