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2017 DIGILAW 2360 (RAJ)

Legal Representatives of Mohd. Yusuf S/o Noor Mohammed Chhipa v. Urban Improvement Trust, Bhilwara Through Its Secretary, Bhilwara (raj. )

2017-11-01

DINESH MEHTA

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JUDGMENT : DINESH MEHTA, J. By way of the present writ petition, the petitioner has laid challenge to an order dated 07.12.2016, whereby the learned Trial Court has refused to review/modify its earlier dated 11.03.2013, vide which the subject agreements were ordered to be impounded and remitted to Collector (Stamps) for adjudication of appropriate stamp duty. 2. The facts in brief are that the petitioner - plaintiff filed a suit for declaration and permanent injunction against the Urban Improvement Trust, Bhilwara, seeking an order of injunction from interfering with his possession and also for grant of order for regularisation. 3. The suit in question was premised on three agreements to sell dated 18.02.1986; 15.12.1986; and 15.06.1987 4. During the pendency of the suit, the respondent - UIT, Bhilwara moved an application, raising objection regarding admissibility of the document, as the same was neither registered nor properly stamped. 5. Learned court below decided the said objection by way of order dated 11.03.2013 and ordered to impound the same and remit it to the Collector (Stamps), for determination of appropriate stamp duty and recovery of the deficit stamp duty. 6. The petitioner thereafter, moved an application on 30.05.2013, which came to be rejected by the Trial Court on 05.09.2013, inter alia, observing that the Court has already decided to remit the matter to the Collector (Stamps), no review/modification of the order passed on merit can be made by the Court. 7. The petitioner moved another application on 23.09.2016, inter alia, contending that the agreement in question is properly stamped and the same may not be sent to the Collector (Stamps), for determination of appropriate stamp duty. The petitioner's aforesaid application came to be rejected by the Trial Court at a cost of Rs. 1,000/-, vide its order dated 07.12.2016 8. The petitioner has preferred the present writ petition laying challenge to order dated 07.12.2016 Though no challenge has been made to the basic order dated 11.03.2013, yet in the interest of justice, the petitioner was permitted to make submissions about the illegality and infirmity in the order dated 11.03.2013 9. Mr. Sajjan Singh, learned counsel for the petitioners submitted that the learned Trial Court has erred in impounding the document and sending the same to the Collector (Stamps) for determination of proper stamp duty. Mr. Sajjan Singh, learned counsel for the petitioners submitted that the learned Trial Court has erred in impounding the document and sending the same to the Collector (Stamps) for determination of proper stamp duty. His contention has been that at the time of execution of the agreements dated 18.02.1986; 15.12.1986; and 15.06.1987, no stamp duty was payable under the Indian Stamps Act; without examining the same, learned Trial Court has undertaken a futile exercise by remitting the document to the Collector (Stamps) for determination of stamp duty. 10. Mr. Sajjan Singh argued that before impounding and sending the agreements for determination of proper stamp duty, the Trial Court ought to have decided the issue of exigibility of stamp duty at its end, instead of sending the same to the Collector (Stamps). 11. Per contra, Mr. Shreyansh Mardia, learned counsel appearing for the UIT, Bhilwara, submitted that the Court has committed no error of law in impounding and sending the agreements to the Collector (Stamps). He added that if no stamp duty is found payable on the basis of applicable law, the Collector (Stamps) would naturally pass appropriate order, keeping in view the relevant provisions of law. 12. Mr. Mardia contended that the Court is neither competent nor equipped to decide the market value of the property and calculate applicable stamp duty, if the same is found leviable. 13. Having heard learned counsel for the parties at length, this Court does not deem it appropriate to decide the question as to whether the documents in question (three agreements) are exigibile to stamp duty or not and if yes, what would be the amount of duty; particularly when the Trial Court had neither examined the issue of exigibility of stamp duty nor determined the same. 14. In wake of the objection about exigibiltiy of stamp duty; payment of deficit stamp duty and consequence thereof, in considered opinion of this Court, the Trial Court has committed no error of law in impounding and sending the contentious documents to the Collector (Stamps). 15. Keeping the factual backdrop into consideration, the writ petition is disposed of with the direction that the Trial Court shall forthwith remit the documents to the Collector (Stamps), Bhilwara. On receipt of the documents, the petitioner shall be permitted to file his objection or submissions regarding applicability and quantum of stamp duty. 16. 15. Keeping the factual backdrop into consideration, the writ petition is disposed of with the direction that the Trial Court shall forthwith remit the documents to the Collector (Stamps), Bhilwara. On receipt of the documents, the petitioner shall be permitted to file his objection or submissions regarding applicability and quantum of stamp duty. 16. The Collector (Stamps) shall consider petitioner's objection in accordance with law and pass appropriate order about applicability of the stamp duty on the contentious documents and amount of duty, if found payable. On determination of the deficit stamp duty, if any, the Trial Court and the petitioner will be informed and till the matter is decided by the Collector (Stamps), Bhilwara, further proceedings before the Trial Court shall remain in abeyance, as the documents in question, are the foundation of the suit proceedings. 17. With these observations, the writ petition stands disposed of. The Collector (Stamps) to do the needful as expeditiously as possible, preferably before 28.02.2018.