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2015 DIGILAW 139 (CAL)

Godavari Mercantile Pvt. Ltd. v. RNR Enterprise

2015-02-19

HARISH TANDON

body2015
Judgment The challenge is made to several orders passed in Title Suit No. 148 of 2006 by the learned Civil Judge (Senior Division), Baruipur on the issue of ascertainment of market value of the property which is the subject matter of an agreement for Sale for which a relief for specific performance of agreement was sought in the suit. Admittedly the agreement, which was executed by and between the parties in the year 2003, is unstamped and unregistered. Such agreement, if sought to be tendered in evidence, cannot be received unless the Court impounds it. Exactly what is required to be done had been done by the Trial Court when the witness tendered the said agreement and invited the Court to receive the same in evidence. The Court sent the document to the Additional District Sub-Registrar (ADSR), Sonarpur, South 24-Parganas, for ascertainment of the market value and the stamp duty which would be paid thereon so that the document can be received in evidence after impounding. The ADSR determined the market value and also indicated the stamp duty to be paid on the said instrument and sent the same to the Court. By taking out an application under Section 151 of the Code of Civil Procedure on July 28, 2014, the petitioner raises an objection on determination of the market value and the stamp duty and prayed for direction upon the said ADSR to reconsider the valuation. The said application was moved on August 7, 2014 when the Court after recording findings dismissed the same. Simultaneously, on the basis of an application for adjournment filed by the plaintiff/petitioner, the Court extended the time for deposit of the penalty and impounding fees. The attention of this Court is drawn to an application for adjournment filed on the same day. It does not appear that any express prayer is made regarding the extension of time to deposit the penalty and the other requisite fees required therefor. The prayer goes simply that some time may be allowed for filing the valuation fees before the Collector. The matter did not rest there. Another application under Section 151 of the Code is taken out for reconsideration of the said order. By a subsequent order no. 101 dated September 8, 2014, the Court rejected the application filed by the petitioner for reconsideration of the order no. 96 dated July 17, 2014 and the order no. The matter did not rest there. Another application under Section 151 of the Code is taken out for reconsideration of the said order. By a subsequent order no. 101 dated September 8, 2014, the Court rejected the application filed by the petitioner for reconsideration of the order no. 96 dated July 17, 2014 and the order no. 92 dated August 7, 2014 and further extended the time to deposit penalty and other requisite fees. Though the Court records that failure to deposit the same would automatically attract the dismissal of the suit to which this Court did not concur. A document is offered for being received in evidence which requires impounding and, therefore, the default in payment of the requisite stamp duty and the penalty and other fees may disentitle the person to have the said document received in evidence or at least the Court shall decline to receive the said document in evidence but under no circumstances, the Court shall dismiss the suit. Reverting back to the core issue which is involved in this revisional application, the plaintiff/petitioner wanted the document to be sent to the Collector for ascertainment of the market value and the stamp duty leviable thereupon after showing his intention to disagree with the valuation arrived by the ADSR. The learned Advocate for the petitioner submits that the party has a right to disagree with the valuation of the ADSR and may apply to the Court for sending the document to the Collector who is the ultimate authority for ascertainment of market value and the stamp duty required on the said document. It is strenuously submitted that the Court ought not to have imposed the penalty as 10 times the stamp duty determined by the ADSR but should have taken a rational and reasonable view in relation to the subject dispute. Mr. Mitra, learned Senior Advocate, appearing for the opposite party, took a point of demurrer that this Court should throw the revisional application at the threshold as the plaintiff/petitioner literally accepted the order passed by the Trial Court which is impugned in this revisional application, as they prayed for extension of time to deposit the penalty and the stamp duty as determined by the ADSR. According to him, on at least three occasions, the applications filed by the plaintiff/petitioner would show that they have virtually accepted the order impugned in this revisional application. According to him, on at least three occasions, the applications filed by the plaintiff/petitioner would show that they have virtually accepted the order impugned in this revisional application. Another point of demurer is taken that the plaintiff/petitioner is guilty of suppression of material facts. According to him, the applications for adjournment, filed before the Trial Court have been consciously and deliberately suppressed in the revisional application and the Court should draw an adverse inference and disentitle the petitioner to claim the judgment on merit. Without waiving the point of demurer, Mr. Mitra would submit that if a party to a proceeding disagree with the ascertainment of the stamp duty by the other authority than the Collector, he can approach the Court with such disagreement and pays the stamp duty and penalty as ascertained and the Court shall thereafter send to the Collector the said document for fresh assessment and in that event, the petitioner should not be blessed with the order of stay of the suit as held in the case of Sri Om Prakash Gupta & Ors. Vs. Smt. Saraswati Shaw & Ors. reported in (2002) 1 CLJ 452 . In reply, it is stated that a litigant should not suffer because of the lapses and laches on the part of the Advocate. It is further submitted that the meaningful reading of the averments made in the adjournment petitions filed before the Trial Court would suggest that since the matter was pending before this Court, the postponement of the matter was asked for though the prayer is couched loosely as if the time for depositing the stamp duty as well as the penalty is to be extended till further date. It is thus submitted that the concession by the lawyer is no concession in the eye of law and the litigant should not suffer for such act. Taking the last submission first, it is no doubt true that the concession made by the lawyer in course of the proceeding on a proposition of law which appears to be otherwise, cannot act as a deterrent against the litigant. Such concession is no concession in the eye of law. The Apex Court in case of Union of India & Ors. Vs. Mohanlal Likumal Punjabi & Ors. Such concession is no concession in the eye of law. The Apex Court in case of Union of India & Ors. Vs. Mohanlal Likumal Punjabi & Ors. reported in (2004) 3 SCC 628 , relied upon by the petitioner, in clear and unequivocal terms held that the wrong concession made by the counsel cannot bind the parties when the statutory provision clearly provides otherwise. It is clear that the concession of a lawyer on a point of law, which appears to be otherwise, is no concession and, therefore, cannot bind the parties. According to the learned Advocate for the petitioner, the concession on fact, which subsequently appeared otherwise, cannot act prejudicial to the interest of the party and, therefore, even if the adjournment is sought for the same, cannot bind the petitioner. The attention of this Court is drawn to the certified copy of the adjournment petitions filed by the petitioner in the Trial Court. The adjournment petition filed on November 19, 2014 though contains the averments in paragraph 2 thereof that the entire matter is pending before the Hon’ble High Court but the prayer was made to extend the time to deposit the impounding fees. It is not a simplicitor application for adjournment at the instance of the Advocate alone. The aforesaid statements are duly verified by the petitioner himself, which is discernable therefrom by putting the signature at the foot of the said application. The subsequent application for adjournment dated January 8, 2015 is filed with an affidavit duly signed by the petitioner. In the said application as well, the prayer to extend the time to pay the fees and duties are incorporated. The adjournment application filed on December 16, 2014 and January 27, 2015 contains more or less same averments and duly signed by the plaintiff himself. Had it been a case that the learned Advocate of his own has filed the application for adjournment, this Court may have accepted the explanation offered by the petitioner. On each occasion, the petitioner himself signed at the foot of the said petition, either below the verification portion or at the time of administration of oath and was conscious and aware of the averments made therein. On each occasion, the petitioner himself signed at the foot of the said petition, either below the verification portion or at the time of administration of oath and was conscious and aware of the averments made therein. Though the motive was to postpone the hearing of the said suit and to avoid the same to be dismissed because this Court did not pass any interim order while entertaining the revisional application but a chance was taken in the event, the revisional application fails, the trial Court would not proceeded to dismiss the suit as indicated in the first order and the petitioner will get a breathing time to deposit the stamp duty and the penalty. It would not be proper for this Court to interfere with the impugned order when the petitioner with his conduct has impliedly accepted the order by which the Court directed the payment of the stamp duty and the penalty by extending the time. Even on merit, this Court does not find that there is any justification in interfering with the impugned order. Section 33 of the Stamp Act puts an embargo on the Court or the authority to received evidence except an officer of police, if it is not duly stamped until it is impounded. Section 35 puts further fetter in receiving the instrument chargeable with duty to be received in evidence unless such instrument is duly stamped. Proviso inserted thereto empowers the authority to impose penalty as 10 times the amount of the proper duty or deficient portion thereof. Section 38 which is material in this context postulates that the authority may receive the document in evidence upon payment of penalty as provided by Section 35 or of duty as provided by Section 37, he shall send, to the Collector, an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof and shall send such amount to the Collector, or to such person as he may appoint. Sub-Section (2) thereof requires sending of the original instrument to the Collector. Section 39 deals with the power of Collector to refund the duty paid under Section 38(1) of the said Act. Sub-Section (2) thereof requires sending of the original instrument to the Collector. Section 39 deals with the power of Collector to refund the duty paid under Section 38(1) of the said Act. In this regard, the decision of this Court rendered in case of Sri Om Prakash Gupta (supra) can be taken note of wherein it is held that in the case a party decides not to accept the valuation made by the Court, he may apply for sending the document in terms of Section 33 of the Act but in such event cannot claim the stay of the suit pending decision by the Collector. Mr. Mitra, the learned Senior Advocate for the opposite party submits that in all the eventualities the petitioner has to deposit the penalty as well as the other amount required under Sub-Section (1) of Section 38 of the Act before inviting the Court to send the document to the Collector. This Court do not concur with the submission of Mr. Mitra. When a case squarely comes within the ambit of Sub-Section (1) of Section 38 of the Act, which envisage that in the event the amount of duty or penalty is paid instead of sending the original document, shall send a authenticated copy thereof along with a certificate stating the amount of duty and penalty levied in respect thereof. Once such recourse is taken, the Collector can invoke the power provided under Section 39 and Section 61 of the said Act. Where an objection is raised as to the valuation, if the Court thinks that the Collector should ascertain the value and the stamp duty to be paid on the instrument, shall send the original document to the Collector without insisting for deposit of the stamp duty or the penalty and in such case, the Court shall not stay the further proceeding of the suit until the decision of the Collector. There is no difficulty in holding that once an application is made before the Trial Court, raising a dispute as to the market value as well as the stamp duty determined by the ADSR, to send the instrument to the Collector for determination without taking any steps, which may remotely suggests the acceptance of the order. The proper course is to send the same to the Collector for his decision and refuse to grant the stay of further proceedings in the suit. The proper course is to send the same to the Collector for his decision and refuse to grant the stay of further proceedings in the suit. In the instant case, as I have indicated above, though the blame is sought to be shouldered on the learned Advocate but in fact, the petitioner himself has verified the statements made in the said application; even accepted the same to be true while taking an oath before the Oath Commissioner. This Court, therefore, does not feel that the Trial Court has committed any wrong in passing the impugned order i.e. Order No. 96 dated July 17, 2014. Since the revisional application has consumed certain time in reaching the ultimate stage, this Court feels that the time to deposit the penalty as well as the duty as ascertained by the Court should be extended for a further period of three weeks from date. If such deposit is made, the Trial Court is directed to take steps under Sub-Section (1) of Section 38 of the Stamp Act and the Collector shall take an independent decision provided under Section 39 of the said Act in relation to the penalty imposed by the Court. With this observation the revisional application is dismissed. No order as to costs.