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2019 DIGILAW 2826 (RAJ)

Prakash Chandra v. Hanif Mohammed

2019-11-11

SANDEEP MEHTA

body2019
ORDER : Sandeep Mehta, J. 1. The matter today has come up for orders on an application preferred by the appellant's counsel Mr. G.R. Goyal under Section 39 read with Section 42 of the Rajasthan Stamps Act, 1998. 2. Brief facts relevant and essential for disposal of the present application are noted here in below. The appellant had filed a suit for specific performance of an agreement to sale dated 20.01.2006. The respondents being the alleged executants of the agreement appeared before the trial court and raised a pertinent objection made in the written statement regarding admissibility of the said document on the ground that it was insufficiently stamped and unregistered and thus, could not be admitted in evidence. Despite the pertinent objection being taken, neither was any attempt to furnish the deficit stamp duty made by the appellant herein nor was any request made to the trial court for impounding the said document and charging the stamp duty. The trial court, framed a pertinent issue No. 7 regarding this objection of the respondents. Accordingly, the trial court decreed the suit against the appellant by holding that the agreement was not admissible in evidence vide judgment and decree dated 18.11.2011 in Civil Original Suit No. 52/2006. 3. The appellant has preferred the instant first appeal being aggrieved of the judgment passed by the trial court, wherein, an objection is taken that the finding recorded by the trial court upon the issue No. 7 is erroneous because the agreement had already been exhibited by the trial court and once the same had been exhibited without any objection, it cannot be held in the retrospective that it is not admissible in evidence. At ground No. (C) of the appeal, the appellant raised a pertinent objection that the trial court fell into grave error while holding that requisite stamp duty was payable on the document; that the same was not properly stamped and that if at all the trial court's view on this aspect is held to be correct, the case should be remanded back to the trial court for following the procedure laid down under Section 42 and 37 of the Rajasthan Stamps Act, 1998. Also, regarding the requirement of getting the document registered, it has been pleaded at ground No. (D) of the appeal that as the possession had not been handed over to the purchaser, there was no requirement of getting the document registered. 4. Mr. G.R. Goyal, learned counsel representing the appellant while arguing on the application under Section 39 read with Section 42 of the Rajasthan Stamps Act, 1998, relied upon the decision of the Hon'ble Supreme Court in the cases of Shyamal Kumar Roy Vs. Sushil Kumar Agarwal [2007 (1) WLC (SC) Civil 283]; Sita Ram Bhama Vs. Ramvatar Bhama, AIR 2018 SC 3057 and the judgment of the Single Bench of this court in the case of Jeeta Ram & Ors. Vs. Additional District Judge (Fast Track) No. 3, Bikaner & Ors. [2010 WLC (Raj.) 155] and urged that a mandate is cast upon the trial court by law to impound an document in case the same is found insufficiently stamped and that the finding recorded in the impugned judgment to this extent is bad in the eye of law. He further urged that even the High Court, while examining the matter in appeal can direct impounding of the document at this stage and the same may be sent to the appropriate authority for charging the appropriate stamp duty thereupon. He, thus implored the court to accept the application and prayed that the said document may be impounded for charging of appropriate stamp duty. 5. Per contra, Mr. Vishal Sharma, learned counsel representing the respondents, relied upon the Supreme Court decision in the case of M/s. K.B. Saha & Sons Pvt. Ltd. Vs. M/s. Development Consultant Ltd., (2008) 8 SCC 564 and urged that the trial court was absolutely justified in holding that the document was not admissible in evidence as per Section 49 of the Registration Act. He contended that there is no prayer of the appellant that the document should be used in evidence for collateral purposes and thus, the application deserves to be dismissed. 6. I have given my thoughtful consideration to the submissions advanced at bar, gone through the impugned judgment, the relevant provisions of law and the precedents cited at bar. 7. He contended that there is no prayer of the appellant that the document should be used in evidence for collateral purposes and thus, the application deserves to be dismissed. 6. I have given my thoughtful consideration to the submissions advanced at bar, gone through the impugned judgment, the relevant provisions of law and the precedents cited at bar. 7. In the case of Shyamal Kumar Roy (supra), the Hon'ble Supreme Court considered the import of Sections 36 and 38 of the Indian Stamp Act and went on to hold as below:- 10. It is not in dispute that Development Agreement dated 16.1.1995 was typed on a non-judicial stamp paper of Rs. 10/-. It was also not registered. We, however, in this matter are not concerned with the effect of non-registration of the said instrument. There is no doubt or dispute that in terms of Section 33 of the Indian Stamp Act, as amended by the State of West Bengal, a duty is cast upon the authorities concerned including the Courts to impound a document where the instrument produced before it is insufficiently stamped. When a deficiency in stamp duty is brought to the notice of the Collector or it otherwise comes to his notice, he may call for the instrument for the purpose of satisfying himself as to the adequacy placed thereon and proceed to deal with the instrument in terms of Section 38 thereof. 11. Section 36, however, provides for a 'stand alone' clause. It categorically prohibits a court of law from reopening a matter in regard to the sufficiency or otherwise of the stamp duty paid on an instrument in the event the same has been admitted in evidence. Only one exception has been made in this behalf, viz., the provisions contained in Section 61 providing for reference and revision. In a case where Section 33 of the Act, as amended by West Bengal Act would be applicable, the proviso appended to Sub-Section (5) carves out an exception that if no action would be taken after a period of four years from the date of execution of the instrument. 12. The agreement, as noticed hereinbefore, was executed in the year 1995. The applications purported to be under Section 151 of the Code of Civil Procedure, 1908 were filed by Appellant only on 16.2.2005. The Development Agreement, as noticed hereinbefore, was admitted in evidence on 17.2.2003. 12. The agreement, as noticed hereinbefore, was executed in the year 1995. The applications purported to be under Section 151 of the Code of Civil Procedure, 1908 were filed by Appellant only on 16.2.2005. The Development Agreement, as noticed hereinbefore, was admitted in evidence on 17.2.2003. The learned Trial Judge as also the High Court relied upon a decision of this Court in Javer Chand (supra). An attempt to distinguish the said decision of this Court was made, inter alia, on the premise that therein this Court was concerned with interpretation of the provisions of Marwar Stamp Act, 1947 in respect of two mudatti hundis, which have been admitted in evidence on payment of duty and penalty, but sought to be made inadmissible in evidence in terms of the provisions contained in the 1947 Act. This Court opined that once the said document was admitted in evidence, the new Act i.e. the 1947 Act would be inapplicable, stating: Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, Section 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial court itself or to a court of appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same court or a court of superior jurisdiction. 13. The said decision, therefore, is an authority for the proposition that Section 36 would operate even if a document has been improperly admitted in evidence. It is of little or no consequence as to whether a document has been admitted in evidence on determination of a question as regards admissibility thereof or upon dispensation of formal proof therefore. If a party to the lis intends that an instrument produced by the other party being insufficiently stamped should not be admitted in evidence, he must raise an objection thereto at the appropriate stage. He may not do so only at his peril. 14. Objection as regards admissibility of a document, thus, specifically required to be taken that it was not duly stamped. He may not do so only at his peril. 14. Objection as regards admissibility of a document, thus, specifically required to be taken that it was not duly stamped. On such objection only the question is required to be determined judicially." In this judgment, the Hon'ble Supreme Court clearly held that when an objection is taken that the document was not duly stamped, it has to be determined judicially and that too at an appropriate stage. Manifestly, a pertinent objection was taken in the case at hand and thus, the above judgment is of no help whatsoever to the appellant's cause. 8. In the case of Sita Ram Bhama (supra), the Hon'ble Supreme Court went on to consider the aspect of impounding of a document and held that in case, a document, which required compulsory registration, was not registered, it could be admitted in evidence for collateral purposes only, provided that the appellant got the same impounded and paid the stamp duty together with penalty. It may be noted here that in the case at hand, there is no prayer of the appellant that he desires to use the said document for collateral purposes. In addition thereto, never did the appellant made any request before the trial court that the document may be impounded or that he was ready to pay the applicable stamp duty and penalty in lieu of the same. True it is, that as per Section 37 of the Rajasthan Stamp Act, the burden of impounding an insufficiently stamped document produced in a suit or other proceedings is cast upon the court, but in the case at hand, the primary question posed before the court is regarding admissibility of the document, which was unregistered. Therefore, even if the document had been impounded by the trial court for charging deficit stamp fee and the penalty applicable thereupon, the question of its admissibility would remain restricted to that for collateral purposes only. It is evident from the judgment of the trial court and the record that he appellant-defendant made no effort whatsoever before the trial court to pay the deficit stamp duty and the applicable penalty. Therefore, the impounding or otherwise of the document would not make any difference to the conclusions drawn by the trial court. 9. In the case of Jeeta Ram (supra), relied upon by Mr. Therefore, the impounding or otherwise of the document would not make any difference to the conclusions drawn by the trial court. 9. In the case of Jeeta Ram (supra), relied upon by Mr. Goyal, learned Single Bench of this court held that it was upon the plaintiff petitioners to deposit the stamp duty alongwith 10 times the said amount as penalty and in case they did not agree to the same, the document may be impounded and be sent to the DIG (Stamps). Again this judgment is of no avail to the appellant because he showed no intent whatsoever to deposit the deficit stamp duty. 10. In the case of M/s. K.B. Saha & Sons Pvt. Ltd. Supra), relied upon by Mr. Vishal Sharma, learned counsel representing the respondents, the Hon'ble Supreme Court laid the following principles governing a controversy where an unregistered document was sought to be admitted in evidence: "From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that: 1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act. 2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act. 3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration. 4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in Immovable property of the value of one hundred rupees and upwards. 5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose." Viewed in light of the ratio of the above judgment, there is no escape from the conclusion that the trial court was absolutely justified in not admitting in evidence the agreement to sale, which was unstamped and unregistered. 11. 11. As there is no prayer of the appellant that the agreement may be looked into for collateral purposes, I find no merit in the prayer made through the application under Section 39 read with Section 42 of the Rajasthan Stamps Act, 1998 for impounding the document and for sending the same to the competent authority under the Stamps Act for determination and recovery of the stamp duty. Thus, the application, being devoid of merit, is dismissed.