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Rajasthan High Court · body

2018 DIGILAW 1629 (RAJ)

Mahavir Chand Bhansali v. Hari Prasad Mehra

2018-08-02

ALOK SHARMA

body2018
ORDER : Alok Sharma, J. A peculiar situation arises in the instant case. A suit for specific performance was laid by the petitioner-plaintiff (hereafter 'the plaintiff') in the year 2009. On service of summons on the respondent-defendant (hereafter 'the defendant') filed a written statement inter-alia objecting to the suit being founded on an agreement to sell dated 26.11.2007, which was inadequately stamped and hence inadmissible in evidence. Issue no.7 was framed as to whether the agreement to sell dated 26.11.2007 not adequately stamped, and inadmissible could sustain the suit for specific performance. However at various stages of the suit, despite the defendant's objections, the Trial Court postponed addressing the question of inadmissibility of the agreement to sell dated 26.11.2007 for reasons of it being inadequately stamped. In fact, the trial court even allowed the agreement to sell dated 26.11.2007 to be exhibited subject to objection as to its inadmissibility to be addressed at the time of final arguments in the suit. 2. After the evidence of the parties before the Trial Court was completed, at the stage of final arguments the plaintiff moved an application under Section 35 of the Rajasthan Stamp Act, 1998 (hereafter 'the Act of 1998') seeking that the agreement to sell dated 26.11.2007 be impounded and remitted to the jurisdictional Collector (Stamps) for assessment and payment of requisite stamp duty. The trial court has by the impugned order dated 26.8.2016 dismissed the application filed under Section 35 of the Act of 1998 primarily on the ground that it was belatedly filed at the stage of final arguments. Hence this petition. 3. Mr. Alok Chaturvedi counsel for the plaintiff submitted that on the objection as to the admissibility of the agreement to sell dated 26.11.2007 having been taken by the defendant, it was incumbent upon the Trial Court to address the issue before commencing with the trial as has been held in catena of cases by the Apex Court. He submitted that the trial court however having postponed the determination of the admissibility of the agreement to sell till the stage of final disposal, the plaintiff cannot be put into the dock for not earlier moving an application under Section 35 of the Act of 1998 for impounding of the said agreement to sell, assessment and payment of requisite stamp duty thereon. Mr. Mr. Alok Chaturvedi submitted that if the trial court had earlier held that the agreement to sell dated 26.11.2007 was inadequately stamped and inadmissible, the plaintiff would have resorted at that stage to the Section 35 of the Act of 1998 application for impounding of the agreement to sell dated 26.11.2007 and it being remitted to Collector (Stamps) for assessment and payment of requisite stamp duty. Mr. Alok Chaturvedi further submitted that in fact the issue of stamp duty relates to public revenues and impounding the agreement to sell and having it assessed for payment of stamp duty will be beneficial to public interest. In this view of the matter the trial court ought to have allowed the plaintiff's application to impound the agreement to sell dated 26.11.2007 for assessment and payment of requisite stamp duty. 4. Mr. J.P. Gupta counsel for the defendant submitted that conduct of the plaintiff did not warrant the Trial Court to exercise its discretion to allow the impounding of the agreement to sell dated 26.11.2007 at a belated stage after recording of evidence both of the plaintiff and defendant. He submitted it was not that the plaintiff was not put to notice by the defendant with regard to inadmissibility of the agreement to sell in issue. Even issue no.7 in regard thereto was framed. All along the plaintiff yet carelessly proceeded with the suit well knowing the position of law that an inadequately stamped document was inadmissible in evidence in terms of Section 37 of the Act of 1998. He submitted that the Trial Court having exercised its discretion on the facts of the case, it is not for this Court to interfere therewith because the said discretion has not been exercised either capriciously or otherwise irregularly. Heard. Considered. 5. It is true that despite the objection of the defendant, the plaintiff did not take any step in time for having the agreement to sell impounded and have it assessed for payment of requisite stamp duty. But the plaintiff's error is partly compounded by the Trial Court in withholding determination of the issue of admissibility of the agreement to sell despite being under-stamped on the misdirected ground that objection thereto would be addressed at the stage of final disposal. But the plaintiff's error is partly compounded by the Trial Court in withholding determination of the issue of admissibility of the agreement to sell despite being under-stamped on the misdirected ground that objection thereto would be addressed at the stage of final disposal. In fact the trial court was under a duty to consider the objections of the defendant with regard to the admissibility of the agreement to sell in issue for reason being under-stamped before the commencement of the trial. 6. The plaintiff on his part also put to notice of under-stamping had the opportunity at the earliest stage of suit to move an application for its impounding and assessment for payment of requisite stamp duty as determined by the jurisdictional authority. That was not done and the situation at hand has now arisen. The suit is at the stage of final arguments and the application for impounding of the agreement to sell was then moved. 7. Be as it may, in view of the overall facts of the case I am of the considered view that as Section 35 of the Act of 1998 does not provide for any limitation, there is no legal prohibition for moving any application there under at the stage of final arguments. The plaintiff has himself been responsible for the inordinate delay, no doubt buttressed by the trial court's failure to address the issue at the outset, in moving the requisite application for impounding of the agreement to sell. Dismissing the plaintiff's application under Section 35 of the Act of 1998 was therefore unjust. No doubt the delay in moving this application in issue attributable substantially to the plaintiff will lead to delays in the disposal of the suit. In the event the agreement to sell was now to be impounded and the trial court required to await the determination of stamp duty and its payment for rendering it admissibility at the trial, the defendant can be compensated for the delay by way of costs. 8. Consequently taking an overall view of the matter, I am inclined to quash and set aside the order dated 26.8.2016, allow this petition and direct the trial court that the application filed by the plaintiff for impounding the agreement to sell dated 26.11.2007 be allowed. 8. Consequently taking an overall view of the matter, I am inclined to quash and set aside the order dated 26.8.2016, allow this petition and direct the trial court that the application filed by the plaintiff for impounding the agreement to sell dated 26.11.2007 be allowed. It is further directed that for the application being allowed, the plaintiff be put to the condition of having the agreement to sell dated 26.11.2007 duly stamped within two months and requisite duty as determined by the jurisdictional be paid within that time reckoned from the date the trial court returns the agreement to sell dated 26.11.2007 to the plaintiff for the purpose (while keeping a duly endorsed photocopy thereof on its record.) It is made clear that only in the event the plaintiff pays the due stamp duty within two months, the agreement to sell be allowed to led in evidence. In the event the plaintiff is unable to have the agreement to sell dated 26.11.2007 duly stamped and returned to the trial court within two months as directed under the order of this Court, the trial court will be free to proceed with evidence as obtains before it without reckoning for the agreement to sell dated 26.11.2007 in evidence and finally decide the suit. 9. This order in conditional of Rs.30,000/-, being paid to the respondent-defendant on or before the next date fixed before the Trial Court.