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2015 DIGILAW 1915 (RAJ)

Manak Lal v. Smt. Shobha Rankawat

2015-11-19

P.K.LOHRA

body2015
JUDGMENT 1. - Petitioner-plaintiff has filed this writ petition to challenge impugned order dated 27.11.2013 passed by Additional District and Sessions Judge No.2, Jodhpur Metropolitan (for short, 'learned Court below'), whereby learned Court below, while accepting application of the respondent-defendant under Sections 35 and 39 of the Rajasthan Stamp Act, 1998 (for short, 'Act of 1998'), has recorded a finding that the document in the nature of agreement to sale is not properly stamped, therefore, the same cannot be exhibited & accepted in evidence and be kept in 'D' part of the file. 2. The facts necessary and germane to the matter are that petitioner-plaintiff filed a suit for specific performance of contract and perpetual injunction against the respondent-defendant. The suit filed by the petitioner was based on alleged agreement to sale dated 18.06.2009 on 100/- rupees stamp. On behalf of respondent, return statement was filed, and thereafter, learned Court below framed issues. When the evidence of the petitioner-plaintiff was going on, an application under Sections 35 and 39 of the Act of 1998 was filed by respondent-defendant raising the objection that the alleged agreement to sale is not properly stamped, and therefore, it is inadmissible in evidence. The application was contested by the petitioner-plaintiff. After hearing rival submissions, learned Court below passed the impugned order. 3. I have heard learned counsel for the parties and perused the impugned order and also examined Chapter IV of the Act of 1998. 4. During the course of arguments, Mr. Thanvi, learned counsel for the petitioner has placed reliance on a decision of this Court in Sunita (Smt.) v. Municipal Council, Bhilwara & Anr. [2015(2) DNJ (Raj.)715] , wherein the Court has considered the procedure to be adopted by trial Court when an objection is raised about the document being insufficiently stamped. Mr. Thanvi has also placed reliance on an earlier decision of this Court in Moti Lal Dangi v. Lrs. of Sohan Kumar & Ors.[2008 WLC (Raj.) UC 241] . This Court, in Bhawana and Ors. v. Chandmal [2015 AIR CC 1237 (Raj.)] , has also examined the procedure to be followed by trial Court when document produced is insufficiently stamped and not inadmissible in evidence. Court has held para Nos.:- "14. of Sohan Kumar & Ors.[2008 WLC (Raj.) UC 241] . This Court, in Bhawana and Ors. v. Chandmal [2015 AIR CC 1237 (Raj.)] , has also examined the procedure to be followed by trial Court when document produced is insufficiently stamped and not inadmissible in evidence. Court has held para Nos.:- "14. This takes this court to consider as to what course was required to be adopted by the court below in respect of the document in question sought to be tendered in evidence. 15. As per provisions of Section 37, every person having by law or consent of the parties, authority to receive evidence and every person incharge of the public office except an officer or police before whom any instrument chargeable to duty is produced and if it appears to him that such instrument is not duly stamped shall impound and refer the same to the Collector for the determination of the stamp duty together with the penalty payable. Thus, it is the duty of the Court to impound the document not duly stamped and make a reference to the Collector for determination of the stamp duty and penalty payable, notwithstanding the fact that the party concerned has not expressed his readiness and willingness to pay the deficient stamp duty and penalty. 16. Section 39 of the Act mandates that no instrument chargeable with a duty under the Act shall be admitted in evidence for any purpose by any persons having by law or consent of the parties authority to receive evidence shall be acted upon registered or authenticated by any such person or by any public officer unless such instrument is duly stamped. However, by virtue of proviso (a) to Section 39 subject to all just exception, the instrument can be admitted in evidence on payment of the duty with which same is chargeable or in case of instrument insufficiently stamped, the amount required to make up such duty and a penalty of Rs. 100 or ten times of the amount of deficient portions thereof, whichever is higher. 17. 100 or ten times of the amount of deficient portions thereof, whichever is higher. 17. Further, Section 42 which prescribes the procedure to deal with the impounded instrument provides that when the person impounding instrument under Section 37 has by law or consent of the parties authority to receive evidence admits such instrument in evidence upon payment of penalty as provided by Section 39 or the duty as provided by Section 41, he shall send to the Collector an authenticated copy of the instrument together with the 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 a person appointed in this behalf. As per provisions of sub-section (2) of Section 41, in all other case, the instrument impounded shall be sent in original to the Collector. However, as per proviso to sub-section (2) of Section 42, a person who produces the instrument, or any party interested is prepared to pay the cost of preparing a copy of the instrument then only such authenticated copy shall be sent to the Collector and then the Collector shall take action on the authenticated copy as if it were instrument original. 18. A conjoint reading of provisions of Sections 39, 41 & 42 of the Act makes it abundantly clear that if the respondents/plaintiffs are ready and willing to remit the amount of deficient stamp duty and penalty as provided by proviso (a) to Section 39 of the Act, after payment of such duty and penalty, the document cannot be refused as to be admitted in evidence on account of insufficiency of the stamp duty and only an authenticated copy thereof along with a certificate in writing stating the amount of duty and penalty levied and such amount recovered is required to be sent to the Collector (Stamp). However, if the respondents/plaintiffs are not ready to remit the amount of deficient stamp duty and penalty as provided by proviso to Section 39 of the Act then the court has to impound the document not duly stamped and make reference to the Collector for determination of the stamp duty and penalty payable notwithstanding the fact that the respondents/plaintiffs have not expressed their readiness and willingness to pay the deficient stamp duty and penalty. In any case, a document insufficiently stamped is not admissible in evidence even for collateral purposes." 5. In this view of the matter, in my considered opinion, the procedure adopted by the learned Court below is alien to the provisions of the Act of 1998 and that has rendered the impugned order vulnerable, which cannot be sustained and is liable to be annulled. The impugned order ex facie suffers from vice of serious jurisdictional error and an error apparent on the face of record. 6. The upshot of the above discussion is that the instant petition is allowed. The impugned order dated 27.11.2013 (Annex.6) passed by learned Court below is quashed and set aside and the learned Court below is directed to decide the application of respondent-defendant under Sections 35 and 39 of the Act of 1998 afresh strictly in accordance with law while considering the observations made to supra.No order as to costs.Petition allowed. *******