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2011 DIGILAW 1345 (CAL)

Noble Trexim Pvt. Ltd. v. Basabi Dutta Chowdhury

2011-09-26

DIPANKAR DATTA

body2011
JUDGMENT 1. THE petitioner and the opposite parties are the plaintiff and the defendants respectively in a suit for specific performance of contract, pending on the file of the learned Civil Judge (Senior Division), 1st Court at Alipore, District 24 Parganas (South). 2. ON an earlier occasion, the petitioner had approached this Court with an application under Article 227 of the Constitution assailing order no. 55 dated March 8/17, 2011. This Court disposed of the said revisional application on May 19, 2011 with the following order: Having heard Mr. Deb, learned senior advocate for the petitioner and Mr. Mukherjee, learned advocate for the opposite parties, this revisional application stands disposed of with a request to the learned Civil Judge (Senior Division), 1st Court at Alipore, who is in seisin of Title Suit No. 38 of 2007, to make appropriate assessment in terms of Section 35 of the Indian Stamp Act, 1899 so as to provide the petitioner with an opportunity to deposit the assessed amount as a pre-condition for having the instrument admitted in evidence in the event the petitioner deposits that assessed amount within 3(three) weeks from that such assessment is notified to it, the learned Judge shall proceed to consider and decide the suit as expeditiously as possible since, I am told, it has reached the stage of recording evidence of the witnesses. Till expiry of time to make deposit in terms of the assessment to be made in terms of this order, the suit shall not proceed. It is further made clear that if within the period as directed above the petitioner does not deposit the assessed amount, it shall have no further opportunity of extension for such purpose and the learned Judge shall proceed to decide the suit without admitting the instrument, according to law. This revisional application stands disposed of. It is further made clear that if within the period as directed above the petitioner does not deposit the assessed amount, it shall have no further opportunity of extension for such purpose and the learned Judge shall proceed to decide the suit without admitting the instrument, according to law. This revisional application stands disposed of. After the aforesaid order was communicated to the learned Judge, he had the occasion to deal with the matter on June 14, 2011 when the following order was passed: In view of the order passed by the Hon’ble High Court in C.O. No. 3527 of 2009 (with C.O. No. 1548 of 2011), the Sheristadar of this court is directed to submit necessary assessment report with regard to payment of the stamp duty for impounding the document in question and in this regard the Sheristadar is given the liberty to take the help of the assessment report submitted by the defendant by way of firisti on 21.1.2011. The Bench Clark Mr. Mondal is to communicate this order to the Sheristadar without fail in the meantime and the Sheristadar shall have to submit his report positively by 30.7.11 so that the plaintiff can be asked to do the needful for impounding the document as per order of the Hon’ble High Court. 3. ON August 9, 2011, the learned Judge passed the following order: Record is taken up for passing necessary order as the stds submitted his report on 4.8.2011 perused the reports. In view of the reports submitted, the plaintiff is directed to pay stamp duty of Rs. 9,61,003.54/- along with penalty @ ten times over the said amount in connection with the M.O.V. in respect of the premises no.36A, Chandra Nath Chatterjee Street, P.S. Bhabinipur and to pay stamp duty of Rs.3,00,909.90/- along with penalty @ 10 times over this amount in connection with the M.O.V. (dated 9.4.2005) in respect of the premises No. 42F, Asutosh Mukherjee Road, Kolkata-25 respectively by 30.8.2011 and to date for necessary order. 4. THE order dated August 9, 2011 is challenged in this revisional application by the petitioner. This Court has heard Mr. Saha, learned advocate appearing in support of the application and Mr. Mukherjee, learned advocate, who opposed the same on behalf of the opposite parties. 4. THE order dated August 9, 2011 is challenged in this revisional application by the petitioner. This Court has heard Mr. Saha, learned advocate appearing in support of the application and Mr. Mukherjee, learned advocate, who opposed the same on behalf of the opposite parties. 6, Section 33 of the Indian Stamp Act, 1899 empowers the learned Judge of the trial Court to impound an instrument that is chargeable with duty in terms thereof, if it is found not to have been duly stamped. Section 35 of the Act ordains that no instrument chargeable with duty shall be admitted in evidence for any purpose unless such instrument is duly stamped. Proviso to Section 35 further ordains that any such unstamped instrument shall be admitted in evidence on payment of the duty with which the same is chargeable, together with penalty as specified therein. 5. CHARGEABLE and duly stamped have been defined in Section 2(6) and (10) of the Act. The same read: 6. CHARGEABLE means, as applied to an instrument executed or first executed after the commencement of this Act, chargeable under this Act, and, as applied to any other instrument, chargeable under the law in force in {India} when such instrument was executed or, where several persons executed the instrument at different times, first executed. 10) Duly stamped, as applied to an instrument, means that the instrument bears an adhesive or impressed stamp of not less than the proper amount and that such stamp has been affixed or used in accordance with law for time being in force in India. 7. Mr. Saha is right in arguing that this Court by its order dated May 19, 2011 having requested the learned Judge in seisin of the suit to make appropriate assessment in terms of Section 35 of the Act, the duty to assess could not have been delegated to the sheristadar. Incidentally, a Judge of the High Court in view of provisions contained in Section 33(2) proviso (b) is empowered to delegate the duty of examining and impounding any instrument but such power of delegation is not available to a learned Judge of the subordinate judiciary. Viewed from this angle, the order impugned cannot be sustained. 6. Mr. Incidentally, a Judge of the High Court in view of provisions contained in Section 33(2) proviso (b) is empowered to delegate the duty of examining and impounding any instrument but such power of delegation is not available to a learned Judge of the subordinate judiciary. Viewed from this angle, the order impugned cannot be sustained. 6. Mr. Saha is also right in his contention that the learned Judge committed serious error in proceeding to determine the quantum of duty chargeable on the unstamped memoranda of understanding between the parties by not taking into consideration the aforesaid statutory provisions. It appears that the learned Judge proceeded to pass the impugned order based on the report submitted to him by the sheristadar, which in turn was founded on two documents produced by the opposite parties, viz. market value/chargeability assessment slip dated January 19, 2011 issued from the office of A.R.A.-1 Kolkata. The stamp duty chargeable on the instruments ought not to have been determined on the basis of the said slips but on the basis of the valuation at the time the instruments were executed and that too, considering the fact that the instruments were for development of a property and were not sale documents. This Courts attention has not been drawn to any provision of the Act laying down the procedure that is to be followed by a learned Judge of a Civil Court to assess the stamp duty that is chargeable. If there is no such specific procedure, it stands to reason that the learned Judge would be justified in adopting such procedure for assessment that, according to him, is just, fair and reasonable. To look into a report prepared by a sheristadar based on documents produced by a party without extending opportunity to his adversary to counter the same is a breach of the principles of natural justice. If only prior to preparation of the report the documents produced by the opposite parties were made over to the petitioner, it could have been shown that at least one of the two could not have been considered at all since it related to a different property altogether. The learned Judge would have done well to bear in mind that any report/order prepared/passed without opportunity to a party likely to be affected thereby falls foul of the principle of audi alteram partem. 7. THIS Court sees no reason to accept Mr. The learned Judge would have done well to bear in mind that any report/order prepared/passed without opportunity to a party likely to be affected thereby falls foul of the principle of audi alteram partem. 7. THIS Court sees no reason to accept Mr. Mukherjees submission that the order dated May 19, 2011 having been passed on the invitation of the petitioner, the order passed by the learned Judge in terms thereof is not open to challenge. Obviously, by the order dated May 19, 2011, this Court did not give the learned Judge the liberty to quantify the duty chargeable arbitrarily or by delegating the duty of assessment to the sheristadar. On the contrary, the assessment was to be made in terms of Section 35 of the Act which, admittedly, has not been done. Obtaining a report from the sheristadar and assessing the stamp duty and penalty that are payable based thereon being in clear departure from the order dated May 19, 2011, the said report is a nullity in the eye of law. The learned Judge acted illegally by accepting the report of the sheristadar in its entirety as sacrosanct. 8. THIS Court is also not persuaded to accept the argument of Mr. Mukherjee that the determination made by the learned Judge being tentative and subject to final decision of the Collector, the petitioner ought to pay the stamp duty together with penalty as assessed by the learned Judge in the impugned order in order to have the instruments admitted in evidence for consideration by the learned Judge, and as and when the matter reaches the Collector under Section 38 of the Act, it would be free to pray for refund of any amount paid in excess of the duty payable and, if the Collector is satisfied, he may refund any portion of the penalty paid in excess of Rs.5/-. The provisions of the Act empower the learned Judge to assess the duty chargeable in accordance with law and if it is made contrary thereto, there is no reason as to why the party liable should be directed to make payment although the superior Court is satisfied regarding the infirmity from which such assessment suffers. In the result, the order impugned stands set aside. The learned Judge is once again requested to act in terms of the earlier order dated May 19, 2011. In the result, the order impugned stands set aside. The learned Judge is once again requested to act in terms of the earlier order dated May 19, 2011. The parties shall be liberty to present documents before the learned Judge to enable him arrive at the correct figures. Once the stamp duty payable together with penalty is assessed in accordance with law, the petitioner may proceed to act in terms of the order to be passed by the learned Judge and in such event, the instruments in question shall be admitted in evidence and follow-up action shall be taken by the learned Judge in terms of Section 38 of the Act. In the event the learned Judge is unable to assess the amount of stamp duty and the penalty payable by the petitioner or if the petitioner disputes the assessment once again, the learned Judge shall refer the matter to the Collector for appropriate decision in accordance with law. 9. ACTION in terms of the order shall be taken by the learned Judge as early as possible. In the event the matter is referred to the Collector for a decision, I sincerely hope and trust that the Collector shall not leave any stone unturned to assess the stamp duty that is chargeable together with penalty and to notify his decision within a month from date of reference. Till the time to make deposit either in terms of the order of the learned Judge or the Collector expires, as the case may be, the suit shall not proceed further. 10. THE revisional application stands allowed to the extent mentioned above. There shall be no order as to costs. Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.