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2018 DIGILAW 4020 (MAD)

Canara Bank v. G. Meerabai

2018-10-30

P.T.ASHA

body2018
JUDGMENT : P.T. Asha, J. 1. This Civil Revision Petition is filed by the defendant Bank challenging the order passed by the VII Assistant Judge, City Civil Court, Chennai, dismissing the petition filed by the bank seeking to eschew EX.A3 marked during the evidence of PW1 on the ground that the said document is compulsorily registrable under Section 17(1)(b) of the Indian Registration Act 2. The brief facts preceeding the filing of the revision and which are essential for disposing of the revision are as follows: The respondent herein had filed a suit in O.S.No.13914 of 2010 on the file of the VII Assistant Judge, City Civil Court, Chennai, for an injunction restraining the bank from interfering with her peaceful possession of carrying on the business of a Snack Bar in the suit property. The respondent had come forward with the case that she had entered into lease agreement with the owner of the property M/s. Dewa Properties Limited on November 2010 (the date is not mentioned in the plaint para 1 and even in the list of documents). She would contend that the staff of the petitioner Bank had gathered around her premises and threatened her, stating that the Snack Bar was blocking the emergency exit. On enquiry the petitioner found that there was already a refreshment stall at the very same spot and there was an objection by the Bank but they had given the clarification to the Corporation of Chennai and had continued the business but was forced to vacate the same due to the harrassment of the staff of the revision petitioner. For these reasons and considering the threat by the revision petitioner bank the respondent had filed the said suit. 3. The revision petitioner had filed a very detailed written statement in which they had contended that the spot in which the revision petitioner was attempting to put up a Snack Bar was the emergency exit and by putting up the shop the emergency exit was blocked. They had further submitted that earlier one Tower Food Court was given a lease by the said M/s. Dewa Properties Limited to run a Snack Bar and this was objected to by the Bank by giving a complaint to the Corporation of Chennai. They had further submitted that earlier one Tower Food Court was given a lease by the said M/s. Dewa Properties Limited to run a Snack Bar and this was objected to by the Bank by giving a complaint to the Corporation of Chennai. However, since, there was no response from the Corporation, the Bank had moved W.P.No.24785 of 2005 for a Mandamus directing the respondent to consider the representation of the Bank with reference to this illegal construction. In the said WRIT petition M/s. Dewa properties Limited was also made a party. By an order dated 15.10.2008 the WRIT petition was allowed and ultimately on 21.08.2010 the Corporation of Chennai had demolished the unauthorised structure with the help of the Police authorities. Within two months thereof the said M/s. Dewa properties Limited in total violation of the order of this Court has let out the suit property to the respondent and the respondent has put up the Snack Bar in the very same spot, where the earlier demolished structure was existing. The Bank had submitted that there was a collusion between the plaintiff and said M/s. Dewa Properties Limited and that the respondent had deliberately not impleaded M/s. Dewa properties Limited as a party to the said suit particularly when they were claiming under them. The Bank therefore sought for the dismissal of the suit. 4. During the trial the revision petitioner had filed her proof affidavit and along with the proof affidavit had marked a lease agreement dated 11.10.2010. A reading of this lease deed would indicate that it was initially for a period of eleven months but renewable twice for a further period of eleven months each. In effect, the lease agreement was for a period of thirty three months. This document appears to have been marked on the side of the respondent/plaintiff. Immediately, thereafter, the Bank has come forward with the application in I.A.No.16850 of 2011 to eschew the EX.A3 from the evidence. The basis on which the revision petitioner/Bank had sought the said relief has been detailed in paragraph three and four of the affidavit filed in support of this petition. 5. Immediately, thereafter, the Bank has come forward with the application in I.A.No.16850 of 2011 to eschew the EX.A3 from the evidence. The basis on which the revision petitioner/Bank had sought the said relief has been detailed in paragraph three and four of the affidavit filed in support of this petition. 5. The respondent herein has filed a counter inter-alia contending that the revision petitioner does not have locus standi to question the validity of the lease deed entered into between the respondent and the land lord, since the revision petitioner is also a tenant under the same land lord. The counter did not addressed the legal submissions made in the affidavit. 6. The learned VII Assistant Judge, City Civil Court, Chennai by his order dated 22.08.2012 has dismissed the said application. The reason for the dismissal being that the respondent is only seeking to use EX.A3 for the collateral purpose because in the absence of EX.A3 there is every likelihood of the respondent being named a trespasser and that notwithstanding the provision of Section 17(1)(b) of the Indian Registration Act and Section 35 of the Indian Stamp Act, EX.A3 should be entertained for the Limited purpose of proving the respondent's possession. Challenging the said order the revision petitioner Bank has filed the above Civil Revision Petition. 7. Heard, Mr. Bijai Sundar, learned counsel on behalf of the revision petitioner. He would argue that the document EX.A3 is the entire basis upon which the suit has been filed by the respondent and the same is not sought to be used for the collateral purpose by the respondent, but for the primary purpose of proving how the respondent had got into possession of the property. That being the case, the learned counsel would argue that the EX.A3 being one for a period of thirty three months the same is compulsorily registrable under Section 17(1)(b) of the Indian Registration Act and cannot be admitted into evidence. The learned counsel would rely upon the Judgment Bipin Shantilal Panchal Vs. State of Gujarat and another reported in, (2001) 3 SCC 1 . He would rely upon this Judgment to put forward the argument that were an objection regarding the deficiency of Stamp Duty of document has been put forward, this objection has to be first set-aside before the suit is proceeded with. 8. State of Gujarat and another reported in, (2001) 3 SCC 1 . He would rely upon this Judgment to put forward the argument that were an objection regarding the deficiency of Stamp Duty of document has been put forward, this objection has to be first set-aside before the suit is proceeded with. 8. He therefore sought for the order in I.A.No.16850 of 2011 in O.S.No.13914 of 2010 on the file of the Assistant Judge, City Civil Court, Chennai to be set-aside. 9. The respondent though served has not entered appearance. 10. Heard the arguments and perused the records though the issue on hand is only with reference to the dismissal of the application seeking to eschew EX.A3 this Court deems it necessary to highlight the following the facts: (a)The respondent/plaintiff has claimed to run the Snack Bar on the basis of lease agreement that was entered into with one M/s. Dewa Properties Limited. However, she has not made the said M/s. Dewa Properties Limited, party to the proceedings. (b)Pursuant to the order passed by this Court in W.P.No.24785 of 2005, the Corporation of Chennai has demolished the structure which was put up in the very same place where the respondent has now put up the Snack Bar with Police protection and M/s. Dewa Properties is a party to the WRIT proceedings, therefore, M/S. Dewa Properties ought to have been made a party to explain as to how they have leased out the very same place in total violation of the orders of this Court. (c) In paragraph one and the list of documents the respondent has not given a date for the lease agreement except stating that it is an agreement that is being entered into in the 11th month of 2010 i.e.,( .11.2010). However, the lease agreement marked as EX.A3 is dated 11.10.2010 and the licence which has been issued to the respondent by the Corporation is dated 13.11.2010. The extent of the space allotted is also not filled up in the plaint at paragraph one and in the schedule of property. However, in the proof affidavit both the date of the lease and the space has been filled by hand. 11. The extent of the space allotted is also not filled up in the plaint at paragraph one and in the schedule of property. However, in the proof affidavit both the date of the lease and the space has been filled by hand. 11. Coming to the issue in the above Civil Revision Petition, reading together the provisions of Section 35 of the Indian Stamp Act and Section 17(1)(b) of the Indian Registration Act makes it clear that where the instrument is chargeable with duty is not charged, then it is inadmissible as evidence for any purpose, whatsoever, including collateral purpose. The first proviso to Section 35 of the Indian Stamp Act details the manner in which the same could be admitted in evidence and admittedly such a procedure has not been followed in the case of EX.A3. 12. This Court had an occasion to consider a similar issue in C.R.P.No.3051 of 2009 dated 06.09.2018 in the case of Mandhri Gounder Vs. Durai Gounder (Died) and others where this Court has held as follows: "6. The Supreme Court in the judgment reported in AIR 2009 SC 1489 in the matter of Avinash Kumar Chauhan has held as follows:- Para 21. Section 35 of the Act, however, rules out applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, we fail to see any reason as to how the document would be admissible for collateral purposes. 7. This Court in the judgment reported in 2005 (3) LW page 283 has held as follows: A conjoint reading of both Sections 35 of the Indian Stamp Act, 1899 and 17(1)(b) of the Registration Act, 1908 in the light of the ratio of the above decision would indicate unmistakably that the unstamped and unregistered document, Ex.A-9 becomes inadmissible in evidence and it follows that the same cannot be looked into for any purpose. 8. The judgment reported in Avinash Kumar Chauhdan supra has been followed by this Court in the judgment reported in A. Pathrakali vs. R.Senthil Kumaran, (2010) 2 MadLJ 248. 9. 8. The judgment reported in Avinash Kumar Chauhdan supra has been followed by this Court in the judgment reported in A. Pathrakali vs. R.Senthil Kumaran, (2010) 2 MadLJ 248. 9. Thus it follows that a document is inadmissible in evidence even for a collateral purpose and this bar is absolute unless the requirements of the 1st proviso to Section 35 of the Stamp Act are complied with. 10. The Learned District Munsif, Polur was therefore clearly in error in admitting the document on the ground that the same is for a collateral purpose." 13. In the Case of hand also EX.A3 is compulsorily registrable under Section 17(1)(b) of the Indian Registration Act and the procedure contemplated in the 1st proviso to Section 35 of the Indian Stamp Act has also been followed. In the result, this Civil Revision Petition is allowed. The order of the learned VII Assistant Judge, City Civil Court, Chennai passed in I.A.No.16850 of 2011 in O.S.No.13914 of 2010 is set aside and EX.A3 is rejected. There shall be no order as to costs. Considering the fact that the suit is of the year 2010 and P.W.1 is in the witness box, the learned VII Assistant Judge, City Civil Court, Chennai shall complete the proceedings within a period of three months from the date of receipt a copy of this order. Consequently, connected miscellaneous petition is also closed.