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2017 DIGILAW 1105 (ORI)

Soumendra Kumar Gahir v. E. Nagamani

2017-09-22

BISWANATH RATH

body2017
JUDGMENT : Biswanath Rath, J. 1. This Civil Miscellaneous Petition involves setting aside the order dated 28.7.2015 passed by the Civil Judge (Senior Division), Bargarh in Civil Suit No.110 of 2000 available at Annexure-3 rejecting a request at the instance of defendant no.1 under Section 35 (a) of the Stamp Act to determine the required stamp duty and penalty, if any, involving the document dated 8.11.1999 to be admitted in the evidence by the defendant no.1. 2. Heard Sri B. Panigrahi, learned counsel for the petitioner. None appeared for the opposite parties during hearing of the matter in spite of appearance of a set of counsel for the opposite parties. 3. Short background involved in the case is that opposite party no.1 and the petitioner involved in an unregistered agreement dated 1.3.1999 prepared for the purpose of transfer/sale of M/s. Bijay Laxmi Trade Combine, a proprietary firm in favour of the petitioner for consideration amount of Rs.70,50,001/- out of which the petitioner already paid a sum of Rs.20,00,000/-to the opposite party no.1. It is subsequently found by the petitioner that the said firm had some infirmities as it was already mortgaged with a bank and the property was held by the opposite party no.1 along with her husband but the agreement was executed by opposite party no.1 only. When the petitioner wanted to withdraw the agreement, the opposite party no.1 acknowledged her difficulty and consequently entered into cancellation of agreement dated 1.3.1999 vide another agreement dated 8.11.1999 upon making payment of a sum of Rs.2,00,000/-, promising therein to pay the balance advance amount of Rs.18,00,000 in monthly installments. The second agreement entered herein was also an unregistered one and also not duly stamped. Finding opposite party no.1 not clearing the advance amount within the reasonable time, the petitioner was constrained to file a suit for specific performance of contract involving the opposite party no.1 vide Civil Suit No.110 of 2000 on the file of Civil Judge (Senior Division), Bargarh. The agreement dated 1.3.1999 though unregistered and not duly stamped but already exhibited as Ext.2. The petitioner in order to prove his case relied upon the evidence of D.W.1 i.e. the scribe of the agreement dated 8.11.1999. The agreement dated 1.3.1999 though unregistered and not duly stamped but already exhibited as Ext.2. The petitioner in order to prove his case relied upon the evidence of D.W.1 i.e. the scribe of the agreement dated 8.11.1999. The opposite party no.1 though did not dispute the signature or the execution of the agreement dated 8.11.1999, filed an objection on 23.6.2015 stating that the same cannot be exhibited as the same is inadmissible due to lack of proper stamp. Petitioner further contended that the agreement since is not a bond but is a continuation of the previous contract hence ought to be exhibited. It is thus alleged that the trial court failed to appreciate the difference between a document in acknowledgement and a bond. It is for this reason, the petitioner filed an application under Section 35 read with Section 61 of the Stamp Act to pay the deficit stamp duty with penalty on the document dated 1.3.1999. The court below under the observation that the agreement dated 1.3.1999 since a document agreeing to sale the said property with terms and conditions stipulated therein as a result of negotiation between the parties since not coming within the term of conveyance and as the agreement to sale of immovable property was not a deemed conveyance prior to Orissa Amendment Act, 2001 came into force since 2003 declined to pass order for impounding of the document. Finding no other remedy, petitioner was constrained to file an application under Section 35(a) of the Stamp Act to pay the deficit stamp duty with penalty on the document dated 8.11.1999 executed by opposite party no.1 in order to regularize the agreement dated 8.11.1999. Opposite party no.1 raising objection taken a technical ground of limitation and contended that the document was required to be impounded and stamped within three years of its registration but under the pretext that the document is unregistered till date submitted that provision contained in Section 33-1(a) of the Stamp Act does not apply to the present case. The trial court refused to impound the document on the premises that it was not stamped within stipulated time and no explanation has been also put forth by the petitioner to explain such delay. 4. The trial court refused to impound the document on the premises that it was not stamped within stipulated time and no explanation has been also put forth by the petitioner to explain such delay. 4. Sri Panigrahi, learned counsel appearing for the petitioner contended that when the case of the petitioner is dependant upon the agreement dated 8.11.1999, the trial court failed to appreciate that such document cannot be admissible in evidence unless the same is impounded. Further, on the premises that the agreement to sale is an instrument, which requires payment of stamp duty applicable to a deed of conveyance, Sri Panigrahi, learned counsel claimed that the trial court ought to have allowed impounding of the instrument by permitting the petitioner to pay the deficit stamp duty with penalty at least in the interest of justice. Referring to the decisions reported in the cases of Omprakash v. Laxminarayan and others, 2013 (4) RCR (Civil) 747, Avinash Kumar Chauhan v. Vijay Krishna Mishra, 2009 (1) RCR (Civil) 651 and (R.A.J.) 297 SCC 532, Sri Panigrahi, learned counsel for the petitioner submitted that the Ext.2 being insufficiently stamped cannot be received in evidence in view of the provisions contained under Section 35 of the Stamp Act and as such claimed that the Trial Court should have allowed the impounding. Further, taking the plea that the agreement dated 8.11.1999 since not a registered document, Sri Panigrahi submitted that there has been wrong application of provisions under Section 33-1(a) of the Stamp Act. It is under the above circumstance, Sri Panigrahi, learned counsel appearing for the petitioner prayed this Court for interfering in the impugned order and setting aside the same. 5. Considering the submission of the petitioner, this Court finds there is no denial to the existence of the document dated 8.11.1999. There is also no denial to the non-registration of the document dated 8.11.1999. 6. Taking into consideration the provisions referred to by both the parties in the consideration of matter in the trial court, this court finds so far as impounding of document is concerned, following the provision contained in Section 33-1(a) of the Stamps Act (Orissa Amendment), the period of limitation for impounding of an instrument is three years from the date of registration. The document sought to be impounded being an unregistered one, there is no question of applying the limitation contemplated in Section 33-1(a) of the Indian Stamp Act. Accordingly, there is also no question for applying for impounding of an unregistered document. The application at the instance of petitioner for impounding the unregistered document was misconceived one. For the unregistered-ness of the document sought to be impounded and for the Orissa Amendment involving Registration Act, since all such documents compulsorily need registerable, the document is wholly inadmissible and provision at Section 35(a) of the Indian Stamp Act is also wholly inapplicable at this stage. 7. Under the circumstance, though this Court finds the trial court has not taken the above into consideration, but for the observations made hereinabove, this Court is not inclined to entertain the Civil Miscellaneous Petition which is thus dismissed. Interim order operating stands vacated. The proceeding vide C.S. No.110 of 2000 is directed to be concluded by end of this year. No cost.