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2012 DIGILAW 1938 (RAJ)

Deepak Soni v. Kodar Mal

2012-09-12

GOPAL KRISHAN VYAS

body2012
Hon'ble VYAS, J.— In all the above writ petitions, common question is involved, therefore, all these writ petitions are decided by this common order. For the purpose of taking into consideration the facts of the case, the Court is considering facts from S.B. Civil Writ Petition No. 841 /2009. 2. In all these writ petitions, the petitioners are challenging the validity of order dated 5.11.2008 passed by Addl. District Judge (Fast Track) No. 2, Udaipur in Civil Original Cases No. 21/2007, 22/07, 23/07, 24/07, 28/07, 29/07, 31/07 and prayed that the said order may be quashed and it may be declared that the document agreement dated 3.12.2004 is sufficiently stamped. 3. As per facts of the case, the petitioners filed suit for specific performance and injunction against the respondents narrating therein that a plot situated at 335, Eklavya Colony was of the ownership of respondent No. 1 and the same was agreed to be sold to the petitioner at the rate of Rs. 65/- per Sq. ft.and, for that purpose, agreement dated 3.12.2004 was executed by respondent No. 1 in favour of the petitioner. By the said agreement, in all 10 plots were sold by respondent No. 1 and Rs. 70,000/- were paid on the same day and this fact was mentioned in the agreement dated 3.12.2004 and it was mentioned in the agreement that rest of the amount shall be paid at the time of registration of the document. In the agreement, it was also mentioned that it shall be the duty of the respondents to get no-objection certificate from the Eklavya Multipurpose Co-operative Society Ltd. and after getting no objection certificate the registration shall be done after payment of the rest of the amount by the petitioners. It is also specifically mentioned that possession of the land in question was not transferred and it was agreed to be transferred after registry of the sale in question. 4. In the suit it is stated by the petitioners that they were ready and willing to pay the rest of the amount and to take over possession but the respondent for one or the other reason is trying to delay the registration of the document on the count that no objection certificate has not been obtained and he is trying hard to obtain the same. 5. 5. As per facts narrated in the suit, the petitioners came to know through the news paper cutting that the plot in question has been sold by respondent No. 1 to respondent No. 2 although he was having no such right in view of the fact that agreement in question was already executed in favour of the petitioner. Therefore, the petitioner prayed in the suit for performance of the agreement dated 3.12.2004. 6. Respondent No. 1 filed written statement on 22.3.2007 and respondent No. 2 filed written-statement on 26.5.2007. After framing of issues, petitioner No. 1 filed his affidavit to substantiate his claim and marked the agreement dated 3.12.2004 as exhibit. Respondent No. 2 filed an application under Sections 35 and 39 of the Rajasthan Stamp Act, 1998 and raised objection that the said agreement was executed upon stamp of Rs. 100/-, therefore, it was not duly stamped and was inadmissible in evidence. 7. The petitioners filed reply to the above application submitting that the document in question has already been executed in the case and various other cases pending before the Court and the same document has been admitted in evidence. Further, decree on the basis of above document has already been passed, therefore, the respondents cannot now raise objection with regard to admissibility of the document. 8. Learned counsel for the petitioners submit that ten plots were sold through the agreement in question dated 3.12.2004 and ten different suits were filed on the basis of the said agreement. In three of the suits, the document in question has already been exhibited without any objection and, thereafter, decree has been passed in favour of the petitioners vide judgment and decree dated 12.2.2008/5.8.2008. 9. Learned trial Court after hearing learned counsel for both the sides, allowed the application filed under Sections 35 and 39 of the Act of 1998 and sent the agreement in question to the Collector (Stamps) for determining the stamp duty and penalty upon the same observing that after paying the stamp duty and penalty the document in question could be exhibited. The trial Court observed that the document in question falls within clause 5(bb) of the Schedule annexed to the Act of 1998, therefore, 3 stamp duty is to be paid which is not paid. 10. The trial Court observed that the document in question falls within clause 5(bb) of the Schedule annexed to the Act of 1998, therefore, 3 stamp duty is to be paid which is not paid. 10. In these writ petitions the petitioners are challenging the validity of order dated 5.11.2008 whereby the document in question has been impounded to the Collector (Stamps) for determining stamp duty and penalty. 11. Learned counsel for the petitioners submits that the order impugned is totally against the spirit of clause 5(bb) of the Schedule appended to the Act of 1998 because as per para 9 of the agreement it is specifically mentioned therein that at the time of registration of the sale-deed possession of the plot in question will be delivered to the petitioner-purchaser and, as per provision contained in clause 5(bb), the document in question does not fall under clause 5(bb), therefore, the order impugned deserves to be quashed. 12. Learned counsel for the petitioners submits that if the document in question does not fall under clause 5(bb), then, obviously it cannot be said that document (agreement) is not properly stamped, therefore, the order impugned may be quashed and application filed by the respondent with the prayer that document is not admissible in evidence may be rejected. 13. Learned counsel for the respondents vehemently argued that if any objection is not raised in other suits filed by various petitioners with regard to admissibility of document that could not be ground to restrain the respondents from raising objection in this case. A legal question can be raised in every case, therefore, the objection with regard to judgment and decree on the basis of same agreement has no significance. The document in question is required to be executed upon stamp as provided under the Act and, upon perusal of the agreement, it will reveal that possession of the plot in question has not been handed over to the petitioner. Therefore, obviously the document falls under clause 5(bb) of the Act of 1998. 14. Learned counsel for the respondents vehemently submitted that as per Section 39 if any instrument is not duly stamped, then, it is to be referred to the District Collector for the purpose of assessing stamp duty and penalty and learned trial Court has rightly exercised its power and sent the document to the District Collector. 15. 14. Learned counsel for the respondents vehemently submitted that as per Section 39 if any instrument is not duly stamped, then, it is to be referred to the District Collector for the purpose of assessing stamp duty and penalty and learned trial Court has rightly exercised its power and sent the document to the District Collector. 15. Learned counsel for the respondents invited my attention towards judgment of the Hon'ble Supreme Court in the case of Avinash Kumar Chouhan vs. Vijay Krishna Mishra, reported in (2009) 2 SCC 532 and submits that said document is not admissible in evidence unless and until it is properly stamped. Therefore, there is no illegality in the order passed by the trial Court and accordingly these writ petitioners may be dismissed. 16. After hearing learned counsel for the parties, I have perused clause 5(bb) of the Act of 1998 which reads as under: "(bb) if relating to Three percent of the total purchase of sale of an consideration of the property, immovable property, when as set forth in the agreement or possession is neither given nor memorandum of agreement : agreed to be given. Provided that the stamp duty paid on such agreement shall at the time of the execution of a conveyance in pursuance of such agreement subsequently be adjusted towards the total amount of duty chargeable on the conveyance if, such conveyance deed is executed within three years from the date of agreement. 17. Upon perusal of clause 5(bb), it is revealed that if any agreement or memorandum of agreement relating to purchase or sale of an immovable property, when possession is neither given nor yet to be given, then, 3% of the total cost of the property is payable for stamp duty. After perusal of the aforesaid provision, I have perused Annex. 1 agreement filed with the writ petition which is written on stamp of Rs. 100/-. Para 9 of the said agreement is as follows: ^^9- ;g fd mDr foØ; jkf'k dh cdk;k jde oDr fof/kor foØ; i= fy[k iath;u djkrs oDr f}rh; i{kdkjku ls izFke i{kdkjku izkIr dj ysxkA ,oa ekSds ij lHkh IyksV ua- 370 ch] 367] 357] 348] 332] 352] 343] 340] 354 o 339 dk dCtk lqiqnZ dj nsxkA** 18. 100/-. Para 9 of the said agreement is as follows: ^^9- ;g fd mDr foØ; jkf'k dh cdk;k jde oDr fof/kor foØ; i= fy[k iath;u djkrs oDr f}rh; i{kdkjku ls izFke i{kdkjku izkIr dj ysxkA ,oa ekSds ij lHkh IyksV ua- 370 ch] 367] 357] 348] 332] 352] 343] 340] 354 o 339 dk dCtk lqiqnZ dj nsxkA** 18. It is true that in this agreement there is no assertion that possession has been given to the petitioner but, at the same time, in para 9, it is specifi-cally agreed that possession will be given at the time of registration of the sale-deed. In view of above, I am of the opinion that the trial Court has committed grave error while sending the agreement in question to the District Collector for determining the stamp duty and penalty which is not attracted in this case. 19. In view of the above, there is no strength in the argument of learned counsel for the respondents that the document in question is not admissible in evidence. It is also worthwhile to observe that in two other suits filed by the petitioners and decided by Addl. Distt. Judge (Fast Track) No.2, Udaipur being suits No.38/2007 and No.40/2007, the same document was accepted and, after taking into consideration the said document, decree was passed in favour of the petitioners, therefore, it can be said that objection taken by the respon-dents with regard to inadmissibility of the document has no force of law. 20. In view of the above, all these writ petitions are allowed. Impugned order dated 5.11.2008 is quashed and set aside with direction to the trial Court to exhibit the said document for the purpose of adjudication of the controversy in the suit.