Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 2216 (RAJ)

Abdul Sattar v. Raj Khan

2012-11-21

GOPAL KRISHAN VYAS

body2012
Hon'ble VYAS, J.—Instant writ petition has been filed by the petitioner to quash order dated 28.04.2011 (Annex.-6) passed by the Addl. District Judge No.2, Jodhpur whereby the application filed by the respondent under Order 13 Rule 3, read with Section 151, C.P.C. was allowed and the trial Court passed an order for impounding receipt dated 06.09.2006 with direction to send the original receipt to the Collector (Stamps), Jodhpur for determination of the stamp duty and levy of penalty treating the same to be an agreement and further directed that after payment of stamp duty and penalty in accordance with law the document shall be taken in evidence in the suit. 2. According to the petitioner, civil suit was filed by the petitioner before the Court of District Judge, Jodhpur for recovery of Rs.4.50 lakh from the respondents with interest. The amount of Rs.4,50 lakh was paid by the petitioner as part of consideration for 7 plots of land situated at Banar which was shown to be under his ownership by the respondents who executed the receipt in question for receiving amount of Rs.4,50 lakh also. 3. In the suit for recovery filed by the petitioner-plaintiff the respondent filed written-statement and also led counter-claim of Rs.2,10,000/- against the petitioner. The respondent had executed the receipt of Rs.4.50 lakh as part of consideration of price of the 7 plots situated at Banar Treatment Plant and, on that basis, suit was filed for recovery because those plots were not belonging to the respondents. 4. During the pendency of the suit, the respondents filed an application under Order 13 Rule 3, read with Section 151, C.P.C, in which, it is stated that the receipt Annex.-4 is not admissible in evidence nor it can be exhibited and marked being insufficiently stamped.. Learned trial Court after hearing the arguments upon the said application passed the impugned order and impounded the receipt dated 05.09.2006 and ordered to send the same to the Collector (Stamps) for determination of stamp duty and levy of penalty treating it to be an agreement. 5. Learned counsel for the petitioner submits that order impugned is patently illegal order because it is far from truth that receipt in question can be termed as agreement in the eye of law. 5. Learned counsel for the petitioner submits that order impugned is patently illegal order because it is far from truth that receipt in question can be termed as agreement in the eye of law. The receipt which is alleged to be an agreement is not an agreement but it is a receipt from the language of the: document itself because in the receipt it is nowhere stated that any kind of possession was given to the petitioner-plaintiff. The only assertion in the receipt is that out of amount of Rs.6,00,000/-, a sum of Rs.4,50 lakh has been paid for part: consideration of the price of the plots. Therefore, obviously, the receipt Annex.-4 dated 05.09.2006 is receipt only and cannot be termed as agreement for the simple reason that the petitioner has filed suit for recovery of amount which is said to be paid by him as consideration of plots which are not belonging to the respondents. The trial Court illegally held that so called receipt is agreement and it requires to be registered and duly stamped. 6. Learned counsel for the petitioner further argued that the trial Court has failed to appreciate that in the entire written-statement it is nowhere challenged by the defendant as to the admissibility of the receipt Annex,-4 in evidence. It is further submitted that the defendant himself accepted in his reply that receipt Annex.-4 was executed by him as receipt and not as an agreement, therefore, on the basis of admitted position of facts also, the application filed by the respondent-defendant under Order 13 Rule 3, C.P.C. was to be rejected but the learned trial Court illegally impounded the said document for sending the same to the Collector (Stamps) for determination of stamp duty and levy of penalty. 7. Learned counsel for the petitioner vehemently argued that the trial Court has failed to appreciate that the receipt Annex.-4 is not an agreement but it is receipt for having received payment of money and undisputedly there is no signature of the petitioner on the receipt in question, therefore, the document is simply a receipt and receipt could not have been construed as an agreement in any event. In support of his contention, learned counsel for the petitioner submits that language of receipt Annex.-4 itself speaks that it is receipt only and not an agreement, therefore, it cannot be termed as an agreement. 8. In support of his contention, learned counsel for the petitioner submits that language of receipt Annex.-4 itself speaks that it is receipt only and not an agreement, therefore, it cannot be termed as an agreement. 8. Per contra, learned counsel for the respondent vehemently argued that admittedly the said payment was made as part consideration towards an agreement to sale of certain plots, therefore, obviously the said receipt was an agreement for all purposes. Therefore, the trial Court after considering entire facts of the case and the fact that the essence of the document is an agreement, therefore, it is an agreement which should be duly stamped and should be registered in view of Section 35 of the Indian Stamps Act, 1899 and under Section 49 of the Registration Act, 2008. 9. Further, learned counsel for the respondents invited attention of the Court towards definition of receipt and submits that as per Section 2 (xxxiii) of Stamps Act, the so called receipt was written for the purpose of immovable property, therefore, the receipt Annex.-4 cannot be termed as receipt because it has not been executed for movable property, therefore, in view of the judgment of the Hon'ble Supreme Court in the case of Avinash Kumar Chouhan vs. Vijay Kumar Mishra, reported in 2009 DNJ (SC) 364, no error has been committed by the trial Court in impounding the document Annex.-4 for the purpose of sending the same to the Collector (Stamps) for determination of stamp duty and levy of penalty. Learned counsel for the respondents vehemently argued that as per definition of receipt provided in the Registration Act as well as judgment of the Hon'ble Supreme Court in Avinash Kumar no error has been committed by the trial Court, therefore, this writ petition may be dismissed. 10. Learned counsel for the respondents vehemently argued that as per definition of receipt provided in the Registration Act as well as judgment of the Hon'ble Supreme Court in Avinash Kumar no error has been committed by the trial Court, therefore, this writ petition may be dismissed. 10. After hearing learned counsel for the parties, I have perused receipt Annex.-4 which reads as under : ^^jlhn dj nh eSaus eSa jkt[kkWu S/o ckcq[kkWu th tkfr eqlyeku fuoklh oghn ikdZ cEck ekSgYyk LVsfM;e tks/kiqj jkt- esjs dqy 7 IykV tks cukM fVªVesUV IykUV ds ikl vk, gq, tks eSaus vki Jh vCnqy lÙkkj S/o [kyhyqjgeku fuoklh ikWpoh jksM bnxkfg ljnkjiqjk tks/kiqj dks vkxs cspuk r; fd;k gS dqy jde Ng yk[k lkB gtkj 550000@00 ftldh lkbZ isVs dqy jde 450000@& v{kjs pkj yk[k ipkl gtkj :i;s izkIr dj fy, ;g jlhn eSaus viuh vDy gksf'k;kjh fcuk fdlh ncko ds fy[k nh tks oä t:jr dke vkosA n- n- eks- ;qlqQ jkt[kku vCcklh** 11. Upon perusal of the aforesaid receipt Annex.-4 it is revealed that this document does not bear any signature of the petitioner being party to it for construing the document to be an agreement whereas for a document to be an agreement it must bear attestation of both the parties under their signatures which is the basic requirement for an agreement. Further, from bare perusal of Annex.-4 it is abundantly clear that defendant who is the executor of the receipt himself stated that it is a receipt of part payment of the cost and it is nowhere stated in the receipt that any document or possession has been handed over to the petitioner. Therefore, at the threshold, it cannot be said that Annex.-4 document is anything else than a receipt. 12. It is also worthwhile to observe that in the written-statement filed by the defendants before the trial Court they themselves accepted that receipt Annex.-4 is executed by the defendant. Therefore, at the threshold, it cannot be said that Annex.-4 document is anything else than a receipt. 12. It is also worthwhile to observe that in the written-statement filed by the defendants before the trial Court they themselves accepted that receipt Annex.-4 is executed by the defendant. Once it is admitted before the Court that Annex.-4 is receipt, then, this fact was to be considered by the trial Court at the time of deciding application filed by the defendant under Order 13 Rule 3, C.P.C. Moreover, it is the admitted position of the case that although the money was received by the defendant-respondent as part payment of the plots but, as per admitted position of the case, the defendant is not having any title over the plots and he has illegally accepted the money; and, now, the defendant is raising voice that Annex.-4 receipt dated 05.09.2006 is an agreement. Therefore, on this count also, the plea of the respondent deserves to be rejected. 13. The definition incorporated in Section 2 of the Rajasthan Stamps Act is as follows : "(xxxiii) "receipt" includes any note, memorandum or writing,-- (a) whereby any money, or any; bill of exchange, cheque or promissory note is acknowledged to have been received, or (b) whereby any other movable property is acknowledged to have been received in satisfaction of a debt, or (c) whereby any debt or demand, or any part of a debt or demand, is acknowledged to have been satisfied or discharged, or ' (d) which signifies or imports any such acknowledgment, and whether the same is or is not signed with the name of any person," Admittedly, Annex,-4 receipt was executed by the defendant whereby he accepts that Rs.4,50 lakh were received by him from the petitioner-plaintiff and suit has been filed for recovery of money because it: came to the knowledge of the petitioner-plaintiff that defendant is not having any title over the plots and, inspite of that, he has obtained amount of Rs.4.50 lakh as consideration towards sale of those plots. Therefore, at the time of deciding application filed under Order 13 Rule 3, C.P.C. the trial Court ought not to have lost sight of these important factual aspects of the matter; but, it appears that the trial Court has completely ignored the above important aspects of the matter. Therefore, the order impugned is not sustainable in law. 14. Therefore, at the time of deciding application filed under Order 13 Rule 3, C.P.C. the trial Court ought not to have lost sight of these important factual aspects of the matter; but, it appears that the trial Court has completely ignored the above important aspects of the matter. Therefore, the order impugned is not sustainable in law. 14. I have also perused the judgment cited by learned counsel for the respondents. In Avinash Kumar Chouhan's case (supra;, the facts are altogether different. In the case on hand, the money was accepted by the respondent-defendant for sale of plots without, in fact, having any title over the land in question and plaintiff-petitioner filed suit for recovery of the said amount which is thus fraudulently accepted by the defendant. Therefore, in the present facts of the case, the judgment rendered by Hon'ble Supreme Court in Avinash Kumar Chouhan's case (supra) is not applicable and, in view of definition of receipt, it can be said that so called receipt was executed by the defendant himself for immovable property towards having received amount of Rs.4,50 lakh from the petitioner-plaintiff, therefore, the said receipt cannot: be termed as an agreement. More so, it is a receipt for accepting the aforesaid amount by the respondent-defendant as part payment of the price of the plots for which he is not having any title in his favour. 15. In view of the above, this writ petition is allowed. Order impugned dated 28.04.2011 (Annex.-6) passed by the Addl. District Judge No.2, Jodhpur is hereby quashed and set aside. The trial Court is directed to decide the suit expeditiously.