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2014 DIGILAW 1159 (MAD)

Ramasamy v. Pattammal

2014-06-05

K.KALYANASUNDARAM

body2014
ORDER This Civil Revision Petition is filed challenging the docket sheet order passed in memorandum dated 06.12.2007 in O.S.No.388 of 2002, on the file of the Principal District Munsif Court, Kumbakonam. 2. The Petitioner is the plaintiff in the suit in O.S.No.388 of 2002. The suit was filed for permanent injunction restraining the defendants, their men in any way interfering with the plaintiff's peaceful possession and enjoyment of the suit property without due process of law. 3. The case of the Plaintiff is that the suit property belongs to Sri Aruna Jedeswaresamy Thirukkoil, Thirupanandal. One Chadaiyappan was the lessee of the suit property under the Temple and after his demise, his legal heirs namely mother and wife of the said Chadaiyappan are the lessees of the suit property. Further case of the plaintiff is that on 30.09.2000, the first defendant sub-let her share in the suit property for a sum of Rs.35,000/- under the Lease Deed, dated 30.09.2000. The Plaintiff instituted the suit relying upon the sub-lease deed, dated 30.09.2000. 4. The Principal District Munsif, Kumbakonam issued a memorandum informing the plaintiff to pay the stamp duty penalty of Rs.38,390/- under Article 35(A) of the Stamps Act. The Petitioner submitted his objection stating that the document dated 30.09.2000 is only an Agricultural Lease Deed and not a Mortgage Deed, which does not require stamp duty. However, the Principal District Munsif, Kumbakonam by order dated 6.12.2007 passed the impugned order directing the plaintiff/petitioner to pay a stamp duty penalty of Rs.38,390/-. Challenging the said order, the present Civil Revision Petition is filed. 5. Heard Mr.M.R.S.Prabu, learned counsel for the Petitioner and Mr.R.Devarajan, learned counsel for the fourth respondent. 6. The learned counsel for the Petitioner submitted that as per Section 4(b) of the Tamil Nadu Cultivating Tenants Protection Act, lease agreement of agricultural land, does not require registration and payment of stamp duty. It is further submitted that the document in question is only a Sub-Lease Agreement of the agricultural land and not a mortgage deed. 7. Per contra, the learned counsel for the fourth respondent made submissions in support of the order of the learned Principal District Munsif, Kumbakonam. 8. It is further submitted that the document in question is only a Sub-Lease Agreement of the agricultural land and not a mortgage deed. 7. Per contra, the learned counsel for the fourth respondent made submissions in support of the order of the learned Principal District Munsif, Kumbakonam. 8. It is seen from the document dated 30.9.2000, the second defendant has executed the document categorically stating that on 9.8.2000 Devaki borrowed a sum of Rs.35,000/- from the Plaintiff and she undertook to repay the amount within a period of three years and till then the Plaintiff can enjoy the suit property. The said Devaki has also given an undertaking to repay the loan amount and if the amount could not be paid within the period of three years, the same terms and conditions can be continued till such payment is made by the second defendant. 9. In my considered opinion, document dated 30.09.2000 is only a mortgage deed and therefore the contention of the Petitioner cannot be accepted. 10. The learned counsel further submitted that the Petitioner disputes his liability to pay Stamp duty. So as per Sections 38(2) and 40 of the Stamp Act, the Court can impound the document, if it is not duly stamped and has to forward the same to the Collector for adjudication, the determination of stamp duty by the Court is not correct. The learned counsel has relied upon the judgements reported in 1998-I-MLJ 407 (V.Ponnusamy vs. N.Namis Dhas and others) and 2001(2) CTC 47 (Chilakuri Gangulappa vs. Revenue Divisional Officer, Madanpalle and another. 11. In 1998-I-MLJ 407, this Court has held as follows: "13. There is no dispute that the Court below which is competent to receive document could impound the mortgage deed in question after examination of the deed. Section 33 of the Stamp Act enables the Court below, to examine and impound the mortgage deed which was produced by the Petitioner along with the plaint and it has rightly impounded the document as the document has not been duly stamped. Section 33 of the Stamp Act enables the Court below, to examine and impound the mortgage deed which was produced by the Petitioner along with the plaint and it has rightly impounded the document as the document has not been duly stamped. Section 38 of the Indian Stamp Act provides as to how the instruments impounded has to be dealt with, sub-Section (1) of Section 38 of the said Act enables the Court below which receives and admits the document in evidence after collecting the stamp duty and penalty as provided under Section 35 of the Stamp Act to send a copy of the authenticated document to the Collector together with a certificate in writing, stating the amount of duty and penalty levided in respect thereof. Sub-Section (2) of Section 38 of the Act refers to several other cases i.e., where the document is impounded but the stamp duty and penalty have not been collected, the document impounded should be sent in original to the Collector. When a document insufficiently stamped is tendered but not admitted in evidence, the Court has to exercise discretion under Section 38(2) of the said Act and has to send the impounded document to the Collector. 14. In other words, if the party filing the document wants it to be admitted in evidence, then only the court shall collect the stamp duty and penalty and admit it in evidence. But, if the party, instead of requiring the document to be admitted in evidence merely wants to send it to the Collector to be dealt with under Section 40 of the Said Act, the Court has no option but to send it to the Collector as provided under Section 38.The Court also cannot compel the party to pay the stamp duty and penalty and for admitting it in evidence." 12. The Honourable Apex Court in 2001(2) CTC 47 held as follows: "12. It is clear from the first sub-section extracted above that the Court has a power to admit the document in evidence, if the party producing the same would pay the Stamp duty together with a penalty amounting to ten times the deficiency of the Stamp duty. When the Court chooses to admit the document on compliance of such condition the Court need forward only a copy of the document to the Collector, together with the amount collected from the party for taking adjudicatory steps. When the Court chooses to admit the document on compliance of such condition the Court need forward only a copy of the document to the Collector, together with the amount collected from the party for taking adjudicatory steps. But if the party refuses to pay the amount aforesaid the Court has no other option except to impound the document and forward the same to the Collector. On receipt of the document through either of the said avenues the Collector has to adjudicate on the question of the deficiency of the stamp duty. If the Collector is of the opinion that such instrument is chargeable with duty and is not duly stamped " he shall require the payment of the proper duty or the amount required to make up the same together with a penalty of an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof." 13. In the present case, an argument is raised that the instrument is not actually an Agreement of Sale as envisaged in the Schedule to the Stamp Act (subject to Amendment made by the State of Andhra Pradesh), but is only a Deed of Compromise entered into by two disputing persons. We refrain from expressing any opinion on the said plea as it is open to the parties to raise their contentions regarding the nature of the document before the Trial Court. In the present case, the Trial Court should have asked the Appellant, if it finds that the instrument is insufficiently stamped, as to whether he would remit the deficient portion of the Stamp duty together with a penalty amounting to ten times the deficiency. If the Appellant agrees to remit the said amount, the Court has to proceed with the trial after admitting the document in evidence. In the meanwhile, the Court has to forward a copy of the document to the Collector for the purpose of adjudicating on the question of deficiency of the Stamp duty as provided in Section 40(1)(b) of the Act. Only if the Appellant is unwilling to remit the amount, the Court is to forward the original of the document itself to the Collector for the purpose of adjudicating on the question of deficiency of the Stamp duty. Only if the Appellant is unwilling to remit the amount, the Court is to forward the original of the document itself to the Collector for the purpose of adjudicating on the question of deficiency of the Stamp duty. The penalty of ten times indicated therein is the upper limit and the Collector shall take into account all factors concerned in deciding as to what should be the proper amount of penalty to be imposed". 13. In the light of the principles laid down by the Honourable Supreme Court and this Court, I set aside the impugned order and direct the trial Court to forward the document to the Collector concerned as envisaged in Section 38(2) of the Act and the Collector shall complete the proceedings envisaged in Section 40(1) of the Act within a period of two months from the date of receipt of the document. 14. In the result, the Civil Revision Petition is disposed of accordingly. Consequently, connected Miscellaneous Petition is closed. However, no order as to costs.