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2013 DIGILAW 642 (CAL)

Jagdish Kumar Khemka v. Madan Mohan Goswami

2013-09-05

PRASENJIT MANDAL

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JUDGMENT Prasenjit Mandal, J. This application is at the instance of the plaintiff and is directed against the order dated November 23, 2009 passed by the learned Civil Judge (Senior Division), 8th Court, Alipore in Title Suit No.6 of 1999 thereby directing the plaintiff to pay the penalty over the deficit Court fees and accordingly directing the Sheristadar to calculate the quantum of penalty on the duty paid and to furnish a report by the next date. Being aggrieved, the plaintiff has preferred this application. The plaintiff/petitioner herein instituted the aforesaid title suit for specific performance of an agreement dated August 16, 1996. The question of marking the said document as exhibit arose at the time of the trial of the suit and the learned Trial Judge directed earlier to pay the stamp duty on the amount valued by the plaintiff supported by an affidavit. Accordingly, the plaintiff valued the suit property at Rs.20,00,000/-and he paid the stamp duty to the tune of Rs.2,00,000/-only thereon. By the impugned order the learned Trial Judge has observed that the plaintiff was required to pay the penalty thereon in compliance with Section 35 of the Indian Stamp Act. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained. Having heard the learned Counsel for the parties and on going though the materials on record, I find that the above facts are not in dispute. The question of admissibility of the document came for consideration before the learned Trial Judge when the said document was tendered for evidence. Admittedly, as per affidavit sworn by the plaintiff, the valuation of the property was accepted at Rs.20,00,000/-and accordingly the plaintiff was required to pay the stamp duty of Rs.2,00,000/-only. He has complied with the said directions. Thereafter, several steps were taken by the parties such as by the plaintiff for deduction of the said amount or to pay him less amount of stamp duty in view of the changed law and those matters were disposed of and ultimately, the petitioner deposited the sum of Rs.2,00,000/- as stamp duty as directed by the Court. By the impugned order, the learned Trial Judge has directed the petitioner to pay the penalty for impounding the said document according to the provisions of Section 33 of the Indian Stamp Act, 1899. By the impugned order, the learned Trial Judge has directed the petitioner to pay the penalty for impounding the said document according to the provisions of Section 33 of the Indian Stamp Act, 1899. Whenever an instrument is not duly stamped and the petitioner intends to mark the same as exhibit, the said document is required to be impounded. Section 35(a) provides the quantum of the stamp duty and the penalty thereon in case of any deficiency in payment of the stamp duty and accordingly, the learned Trial Judge has passed the impugned order holding that in order to mark the said document as exhibit, according to Section 33, the plaintiff is required to pay the deficit stamp duty and the penalty thereon as determined under Section 35(a) of the Indian Stamp Act, 1899. The decision of Sri Om Prakash Gupta & Ors. v. Smt. Saraswati Shaw & Ors. reported in 2002 (1) CLJ 452 supports this proposition of law. During the argument Mr. Arindam Banerjee, learned Advocate appearing for the petitioner has contended that the impugned order is not sustainable in view of the fact that previously, on the question of marking the document as exhibit, the payment of deficit stamp duty and the penalty thereon came for consideration and by the earlier order, the learned Trial Judge directed the plaintiff to pay the stamp duty of Rs.2,00,000/-and at that time, no objection was raised on behalf of the opposite party and as such, the matter has come to a rest and so, the matter becomes a constructive res judicata and as such it cannot be reagitated subsequently. He has also contended that on the earlier occasion, the plaintiff filed an application for certifying the said document as correctly stamped under the provisions of Section 38 of the Indian Stamp Act. The defendant did not file any written objection at that time, but, he filed an application as to not marking the said document as exhibit long time thereafter. So, the prayer of the defendant for modifying the order dated January 6, 2006 as sought for by the defendant, i.e., for payment of penalty need not be re-opened. With due respect to Mr. So, the prayer of the defendant for modifying the order dated January 6, 2006 as sought for by the defendant, i.e., for payment of penalty need not be re-opened. With due respect to Mr. Banerjee, I am of the view that the question as to the payment of deficit stamp duty and the penalty thereon is very much governed by the provisions of Section 33 read with Section 35(a) of the Indian Stamp Act, 1899. Unless the deficit stamp duty and the penalty thereon are paid, the document in question is not admissible in evidence. So far as the payment of deficit stamp duty is concerned, that part has been complied with by the plaintiff but the penalty has not been paid according to the provisions of Section 35(a) of the Indian Stamp Act. The question of raising any objection or not on behalf of the defendant or any objection is raised in the later part of the proceeding is not the matter of consideration, but, the point for consideration is what is the law of land in this regard. Section 35 of the Indian Stamp Act is very much clear that unless any instrument is duly stamped or impounded in case of deficiency of stamp duty, the same is not admissible in evidence before the learned Trial Judge. So, in my view, the learned Trial Judge has rightly addressed the issue and there is no scope of interference with the impugned order. The application is, therefore, bereft of merits and is, therefore, dismissed. Considering the circumstances, there will be no order as to costs.