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2017 DIGILAW 1441 (ORI)

Rageshree Mohanty v. Subhrakanta Das Mohapatra

2017-12-12

BISWANATH RATH

body2017
JUDGMENT : Biswanath Rath, J. This matter involves challenge to the order dated 9.11.2017 passed by the learned Civil Judge (Sr. Divn.), Bhubaneswar in C.S. No.1688 of 2013. Petitioner while challenging the above order vide Annexure-7 seeks a direction to impound the documents i.e. the agreement to sale dated 17.3.2017 filed by the petitioner-plaintiff in the civil suit. 2. Short background involved in the case is that the opposite party-defendant in C.S. No.1688 of 2013 is the owner in possession of a plot of land in the District-Khordha, Tahasil-Bhubaneswar, Mouza-Kalarahanga, Khata No.725/515, Plot No.1672/2538/3210, Area – Ac.0.120 dec., Sthitiban, Kisam-Sarad-II, Rent Rs.0.75 p., bounded by-North Plot No.1671 (P), South-Road and Plot No.1673(P), East-Sub-Plot No.B and West Plot No.1676(P). The opposite party agreeing to sale the suit land to the plaintiff-petitioner on a consideration of Rs.23,00,000/- executed a deed of contract to sale the suit land on receipt of Rs.14,00,000/- as part consideration of money with further condition that the balance consideration of Rs.9,00,000/- would be payable by the petitioner-plaintiff at the time of execution of deed of sale in respect of the suit land within stipulated period of five months from the date of execution of the agreement for sale. As a consequence, agreement for sale of the suit land in favour of the petitioner was executed on 17.3.2013 and as per the conditions indicted hereinabove, the said agreement was to remain valid till 17.8.2013. It appears, the plaintiff-petitioner being ready with the balance consideration money and willing to get the sale deed executed and register the land in her favour had approached the defendant on first day of August, 2013 and finding the defendant’s avoiding to execute and register the sale deed on receipt of the balance consideration of money, the petitioner issued a pleader notice on 7.10.2013 to the defendant making therein a request to execute the sale deed and for the opposite party-defendant not paying any heed to the pleader notice, the petitioner was constrained to institute the suit bearing No.1688 of 2013 seeking relief for specific performance of contract within stipulated time to be fixed by the Court and failure of which, also sought for intervention of the Court to execute the sale deed and register the same following mandate of law and also for permanently restraining the opposite party-defendant from executing any deed of sale. 3. 3. Opposite party-defendant appearing in the suit filing a written statement completely denied the execution of agreement for sale of suit land indicated hereinabove and pleaded that the plaintiff’s played fraud in creating such a document. While the matter stood thus, the plaintiff filed an application under Order 13 Rule 8 of C.P.C. for permitting her to pay the Stamp duty on the agreement to sale deed dated 17.3.2013 with penalty if any, and for impounding of the agreement dated 17.3.2013 thereby. Considering the aforesaid application, the trial court rejected the application on 18.4.2015 on the ground that the agreement was not brought to the record by way of evidence and thereby, granted liberty to the petitioner to file such application at appropriate stage. It further reveals that the plaintiff examining P.W.s1, 2 & 3 exhibited the agreement to sale dated 17.3.2013 as Ext.1 marked with objection in course of examination of P.w.1. In the meantime, the defendant also examined two witnesses as D.W.1 & 2. Under the premises of bringing the documents to the fold of evidence, the petitioner-plaintiff once again filed an application under Order 13 Rule 8 of C.P.C. involving the same suit for the same purpose. The attempt of the plaintiff-petitioner was objected by the opposite party-defendant. The civil Judge (Sr. Divn.), BBSR after hearing both the parties, by order dated 9.11.2017 rejected the application at the instance of the plaintiff-petitioner on the premises that the case of the plaintiff-petitioner does not come within the purview of insufficiently stamped paper or not duly stamped paper. 4. Assailing the impugned order, learned counsel for the petitioner submitted that the observation of the trial Court that the agreement for sale vide Ext.1 does not come under the category of insufficiently stamped instrument or not duly stamped paper, as it has been prepared on a plain paper, remains contrary to the provision contained in Order 13 Rule 8 of C.P.C. It is also claimed that the impugned order is also claimed to have been passed under extraneous consideration interpreting the provision under Order 13 Rule 8 of C.P.C. wrongly. The plaintiff-petitioner claimed that the agreement was prepared and executed between the parties on a Sunday being a holiday, the case of the petitioner should have been construed to be a case of improperly stamped and impounding of the document should have been allowed. The plaintiff-petitioner claimed that the agreement was prepared and executed between the parties on a Sunday being a holiday, the case of the petitioner should have been construed to be a case of improperly stamped and impounding of the document should have been allowed. Sri Jhujarsingh, learned counsel for the petitioner also alleges that there is no proper consideration of the provision contemplated in Section 35, 38 & 42 of the Indian Stamp Act and there is thus error apparent on the face of the record. Since the document sought to be impounded is within the instrument in Section 2 (14) of the Indian Stamp Act, 1899, learned counsel for the petitioner claimed that the application of the petitioner should have been allowed. It is under the premises, learned counsel for the petitioner requested this Court for interfering with the impugned order and setting aside the same. 5. Learned counsel for the petitioner in support of his case has taken reliance of some decisions in the case of Brij Mohan and Ors. Vs. Smt. Sugra Begum and ors. as reported in (1990) 4 SCC 147 , in the case of Avinash Kumar Chauhan v. Vijay Krishna Mishra as reported in AIR 2009 Supreme Court 1489, in the case of Gopi Krishna Trivedi versus Sudam Prasad Ojha as reported in 2009 (II) CLR (SC)-135 and in the case of Braja Sundar Nanda versus Pravabati Kar and others as reported in AIR 2014 Orissa 1. 6. Sri Baug, the learned counsel for the opposite party while objecting each of the submission of the learned counsel for the petitioner and supporting the impugned order passed by the trial court contended that the alleged agreement marked as Ext.1 with objection is in a plain paper writing and neither there is any Stamp nor the writing has been made on the Stamp paper and for which, the claim of the petitioner remains unsustainable. Learned counsel for the opposite party also contended that the provision contained in Order 13 Rule 8 of C.P.C cannot be read in isolation and it has to be taken into consideration keeping in view the provisions contained in Sections 33 & 35 of the Indian Stamp Act, 1899. Learned counsel for the opposite party also contended that the provision contained in Order 13 Rule 8 of C.P.C cannot be read in isolation and it has to be taken into consideration keeping in view the provisions contained in Sections 33 & 35 of the Indian Stamp Act, 1899. The provisions makes it clear enabling impounding of the documents not duly stamped and the document involved herein since prepared on a plain paper, the provisions contained in Order 13 rule 8 of C.P.C. does not have any attraction to the case at hand. Drawing a difference between the document not duly stamped and the document not at all stamped, Sri Baug, learned counsel for the opposite party submitted that there has been right application of mind and the provisions to the case at hand by the trial court, which requires no interference of this Court in the impugned orders. 7. Referring to the decisions of the Hon’ble Apex Court in the case of New Central Jute Mills Co. Ltd. and others versus State of W.B. and others as reported in AIR 1963 Supreme Court 1307, in the case of Union of India and Ors. versus S.K. Saigal and Ors. as reported in AIR 2007 Supreme Court 1211, in the case of Union of India versus Chajju Ram (Dead) by Lrs. And others, as reported in (2003) 5 Supreme Court Cases 568, in the case of State of Orissa and others versus MD. Illiyas as reported in (2006) 1 Supreme Court Cases 275 and in the case of Commissioner of Customs (Port), Chennai versus Toyota Kirloskar Motor (P) Ltd. as reported in (2007) 5 Supreme Court Cases 371 learned counsel for the opposite party submitted that for the clear verdict of the Hon’ble Apex Court, the impugned order has a clear support of law and as such leaving no scope for interfering with the impugned order of this Court. 8. Considering the rival contentions of the parties and the pleadings available on record as well as the discussions of the trial court in considering the application under Order 13 Rule 8 of C.P.C at the instance of the plaintiff-petitioner, this Court is of the firm opinion that there is no dispute between the parties to the fact that the document exhibited as Ext.1 is absolutely on a plain paper. The provisions contained in Order 13 rule 8 of C.P.C reads as follows: “Court may order any document to be impounded – Notwithstanding anything contained in Rule 5 or Rule 7 of this Order or in rule 17 of Order VII, the Court may, if it sees sufficient cause, direct any document or book produced before it in any suit to be impounded and kept in the custody of an officer of the Court, for such period and subject to such conditions as the court thinks fit. The aforesaid provision unequivocally speaks that if the Court sees sufficient cause, direct any document or book produced before it in any suit to be impounded subject to such conditions as the court thinks fit: Considering the registerability of a document, this Court finds, provisions in Sections 33 & 35 of the Indian Stamp Act have also a play in the case at hand, which provisions reads as follows: “33.Examination and impounding of instruments :- (1) Every person having by law or consent of parties authority to receipt evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions shall, if it appears to him that such instrument is not duly stamped, impound the same. (2) For that purpose every such person shall examine every instrument so chargeable and so produced on coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in [India] when such instrument was executed or first executed: Provided that- (a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898), (b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf. (3) For the purpose of this section, in cases of doubt,- (a) [the [State Government]] may determine what offices shall be deemed to be public offices; and (b) [[the [State Government]] may determine who shall be deemed to be persons in charge of public offices. Orissa Amendment In Section 33 of the principal Act after Sub-section (1) the following Sub-sections shall be inserted, namely: “(1-a) If it appears to such person from the copy of an instrument produced or coming in performance of his functions, within three years from the date of registration of the instrument, that such instrument is not duly stamped, he shall call for the original instrument and if he is satisfied on production of the instrument that it has not been duly stamped, impound the same and the deficient amount on duty shall be payable by the person liable to pay the duty. (1-b) Where the original instrument is not produced such person shall refer the copy of the instrument to the Collector for determination of the market value of the property and the duty payable thereon and the Collector may determine the market value of the property and the duty as aforesaid in accordance with the procedure provided for in subsection (2) of Section 47-A.” 35. Instrument not duly stamped inadmissible in evidence, etc.-No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped provided that- (a) any such instrument [shall] be admitted in evidence on payment of the duty with which the same is chargeable or, in the case of an instrument in sufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion; (b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it; (c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped; (d) nothing herein contained shall prevent the admission of any instrument in evidence in any preceding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898); (e) nothing herein contained shall prevent the admission of any instrument in any court when such instrument has been executed by or on behalf of [the (Government)] or where it bears the certificate of the Collector as provided by Section 32 or any other provision of this Act.” Section 33 of the above Act deals with examination and impounding of instruments, when the court finds that such instrument is not duly stamped and then direct for impounding the same, whereas Section 35 deals with admissibility of a document/instrument not duly stamped. Bare reading of the aforesaid provisions and from the entire facts and admissions of both the parties, this court finds, the document exhibited (agreement for sale) since drafted on a plain paper, such document cannot be brought within the purview of the document not duly stamped. Therefore, this Court is of the firm opinion that the provisions contained in Order 13 Rule 8 of C.P.C. has no application to the case at hand. 9. Considering the citations cited at Bar by both the sides, this Court taking into consideration the decisions relevant for the purpose and going through the decision in the case of New Central Jute Mills Co. Ltd. and others petitioners versus State of W.B. and others respondents as reported in AIR 1963 Supreme Court 1307 finds, in similar situation the Hon’ble Apex Court in paragraph nos.9 & 11 held as follows: “9. There cannot be any doubt that when it becomes necessary for any public officer of a State –using that word to mean an officer in charge of a public office-to decide whether an instrument is or is not “duly stamped” the law he has to apply is the Indian Stamp Act in the light of the appropriate modifications made by the State Legislature. So, when the Uttar Pradesh public officers had to decide in the present case whether the original mortgage deed was or was not “duly stamped” they had to examine for the purpose the Indian Stamp Act as it stood after its amendment by the Uttar Pradesh Legislature. Section 3 of the Stamp Act creates a liability for stamp duty. Section 3 after its amendment by the U.P. legislature stands thus:- “3. Subject to the provisions of this Act and the exemptions contained in Schedule I, the following instruments shall be chargeable with duty of the amount indicated in that Schedule as the proper duty therefore, respectively, that is to say:- (a) every instrument mentioned in that schedule which, not having been previously executed by any person, is executed in the States on or after the first day of July, 1899. (b) every bill of exchange (payable otherwise than on demand) or promissory note drawn or made of the States on or after that day and accepted or paid, or presented for acceptance or payment, or endorsed, transferred or otherwise negotiated, in the States; and (c) every instrument (other than a bill of exchange, or promissory note) mentioned in that Schedule which, not having been previously executed by any person, is executed out of the States on or after that day, relates to any property situate, or to any matter or thing done or to be done, in the States and is received in the States:- Provided that except as otherwise expressly provided in this Act, and notwithstanding anything contained in clauses (a), (b) and (c) of this section or in Schedule I or I-A the following instrument shall subject to the exemptions contained in Schedule I-A or I-B be chargeable with duty of the amount indicated in Schedule I-A or I-B as the proper duty therefore respectively, that is to say-(aa) every instrument mentioned in Schedule I-A or I:B which not having been previously executed by any person was executed in Uttar Pradesh- (i) in the case of instruments mentioned in Schedule I-A on or after the date on which the U.P. Stamp (Amendment) Act, 1948, came into force, and (ii) in the case of instruments mentioned in Schedule I-B on or after the date on which the U.P. Stamp (Amendment) Act, 1952, comes into force-(bb) every instrument mentioned in Schedule I-A or IB which not having been previously executed by any person, was executed out of Uttar Pradesh (i) in the case of instruments mentioned in Schedule IA, on or after the date on which U.P. Stamp (Amendment) Act, 1948, came into force and (ii) in the case of instruments mentioned in Schedule I-B on or after the date the U.P. Stamp (Amendment) Act, 1952 comes into force, and relates to any property situated, or to any matter or thing done or to be done in Uttar Pradesh and is received in Uttar Pradesh: Provided also that no duty shall be chargeable in respect of (1) any instrument executed by, or on behalf of, or in favour of, the Government in cases where, but for this exemption, the Government would be liable to pay the duty chargeable in respect of such instrument; (2) any instrument for the sale, transfer or other disposition, either absolutely or by way of mortgage or otherwise, of any ship or vessel, or any part, interest, share or property of or in any ship or vessel registered under the Merchant Shipping Act, 1894, or under Act XIX of 1838, or the Indian Registration of Ships Act, 1841, (X of 1841), as amended by subsequent Act.” 11. On behalf of the petitioner it is urged that even so the officer should have held that the document was duly stamped. Reliance is placed for this contention on the definition of the words “duly stamped” in S. 2(11) of the Act. The definition runs thus:- “Duly stamped” as applied to an instrument means that the instrument bears an adhesive or impressed stamp of not less than the proper amount and that such stamp has been affixed or used in accordance with the law for the time being in force in India.” Leaving out of consideration for the present, the question of what should be the proper amount of stamp, it is necessary to consider whether when the officer found that the stamp had not been affixed or used in accordance with the law for the time being in force in “India”. It is pointed out that like the Uttar Pradesh legislature the Bengal legislature had also amended the stamp law and framed its own rules. The amendment of S. 3 in Bengal was by the addition of a proviso in these “provided that, except as otherwise expressly provided in this Act and notwithstanding anything contained in cl.(a), (b) or (c) of this section or in schedule 1, the amount indicated in schedule 1-A to this Act shall, subject to the exemptions contained in that Schedule, be the duty chargeable under this Act on the following instruments, mentioned in clauses (aa) and (bb) of this proviso as the proper duty therefore respectively. (aa) every instrument, mentioned in Schedule, 1-A, as chargeable with duty under that Schedule, which, not having been previously executed by any person, is executed out of Bengal on or after the first day of April, 1922, and relates to any property situated, or to any matter or thing done or to be done in Bengal, and is received in Bengal.” The Bengal government also framed rules under S.76 which were duly published in the Gazette and on such publication became part of the Act. Rule 3 of these rules, as it now stands requires that the duty payable must be paid by means of stamps overprinted with the words “West Bengal”. The instrument in the present case is mentioned in Sch. Rule 3 of these rules, as it now stands requires that the duty payable must be paid by means of stamps overprinted with the words “West Bengal”. The instrument in the present case is mentioned in Sch. I-A of the Stamp Act as in force in West Bengal and though executed out of West Bengal it relates to property situated in West Bengal and was for the purposes of registration received in West Bengal. It was therefore chargeable under S.3(bb) of the Stamp Act as in force in Bengal. This duty was paid by stamps over-printed with the wards “West Bengal” in accordance with the stamp rules in force in West Bengal. On behalf of the petitioner it is urged that the stamp law in force in West Bengal was as much a law in force in India as the stamp law in Uttar Pradesh it’s the law in force in India. It is urged that in deciding whether an instrument is “duly stamped.” Within the meaning of the Stamp Act it was necessary for the officer in Uttar Pradesh to ascertain the law in other parts of India also in order to decide whether or not “stamp” has Seen affixed or used in accordance with the law for the time being in force in India. 10. Reading of the aforesaid paragraphs, this Court finds, the aforesaid decision has a direct application to the case of the opposite party and the same justifies the impugned order also. For the clear provisions contained in Section 33 of the Indian Stamp Act and the dictum of the Hon’ble Apex Court referred to hereinabove and the observation of this Court made hereinabove, this Court is of the view that there has been right consideration of the application under Order 13 Rule 8 of C.P.C by the trial court and as such there is no infirmity in the impugned order, which is hereby confirmed. Decisions referred to hereinabove by the petitioner since have no relevancy, this Court does not want to refer any of the same. Under the circumstances, this Court dismisses the civil miscellaneous petition for having no sustainable ground. 11. The civil miscellaneous petition stands dismissed. However, there is no order as to cost.