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Rajasthan High Court · body

2020 DIGILAW 589 (RAJ)

Mahesh Joshi v. Ramesh Parekh

2020-08-05

ARUN BHANSALI

body2020
JUDGMENT Arun Bhansali, J. - This petition is directed against the order dated 27/1/2020 passed by the Rent Tribunal, Jodhpur (Metro) ('the Tribunal'), whereby, the application filed by the petitioner under Order XIII Rule 4 CPC read with Section 17(1)(g) of the Registration Act, 1908 ('the Act, 1908') has been rejected. 2. The respondent filed a petition for eviction through his Power of Attorney holder - son before the Rent Tribunal. During the pendency of the proceedings, the present application under Order XIII Rule 4 CPC read with Section 17(1)(g) of the Act, 1908 was filed inter alia with the averments that the document Ex.1, Power of Attorney, based on which the proceedings were instituted is neither registered nor bears requisite stamp duty and, as the same is inadmissible in evidence and cannot be marked as exhibit, the same be placed in Part D. 3. The application was contested by the respondent claiming that there was no necessity to get the Power of Attorney registered and that the same is sufficiently stamped. 4. The Tribunal after hearing the parties came to the conclusion that looking at the document indicates that the same contains power to withdraw or revoke the Power of Attorney and, therefore, the same was not compulsorily registrable, however, apparently the aspect of deficient stamp duty was not dealt with by the Tribunal and the application was rejected. 5. Learned counsel for the petitioner attempted to make submissions that the document in question was an irrevocable Power of Attorney and, therefore, the same was compulsorily registrable under the provisions of the Act, 1908 and, therefore, the Tribunal committed an error in rejecting the application. 6. Submissions were also made that as the document was executed at Ahmedabad, the stamp duty paid was insufficient and the order impugned deserves to be quashed and set aside. 7. Learned counsel for the respondent supported the order impugned. It was submitted with reference to Clause 19 of the Power of Attorney that right has been reserved to cancel, withdraw or revoke the powers conferred upon the attorney and, therefore, it cannot be said that the same was irrevocable and, therefore, the provisions of Section 17(1)(g) of the Act, 1908 has no application. 8. Submissions were also made that the stamp duty paid is sufficient and, therefore, the petition deserves to be dismissed. 9. 8. Submissions were also made that the stamp duty paid is sufficient and, therefore, the petition deserves to be dismissed. 9. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 10. A bare look at the Power of Attorney (Annex.2) reveals that the owner of the property has given a general Power of Attorney to his son to manage, control, look after and supervise the property, approve the deed of conveyance, execute the same on his behalf and besides other activities, file, defend, compromise, compound and withdraw any suit in any court of law in any matter concerning the said property. Clause 19 of the Power of Attorney reads as under: "19. I reserve my right to appoint any other person(s) as my attorney authorizing him to do all or an of the above act, or any other acts, which have been specifically mentioned herein above in respect of my properties or any mater incidental thereto and to cancel, withdraw or revoke the powers conferred upon the said attorney." 11. The provisions of Section 17(1)(g) of the Act, 1908, which are applicable to the State of Rajasthan provide that 'irrevocable power of attorney relating to transfer of immovable property in any way' is compulsorily registrable. For the Power of Attorney to be compulsorily registrable, it must be irrevocable. 12. A bare look at clause 19 quoted hereinbefore reveals that the Power of Attorney in question is revocable and, therefore, the provisions of Section 17(1)(g) of the Act, 1908 have no application to the present document and, therefore, the plea raised by the petitioner has no substance. 13. So far as the plea raised pertaining to the document in question being insufficiently stamped is concerned, admittedly, the document was inscribed on a non-judicial stamp paper of Rs.100/- purchased from Gujarat and the same has been executed at Ahmedabad, which is reflected from the seal of Notary of District Ahmedabad (Gujarat). 14. The provisions of Section 3 of the Rajasthan Stamp Act, 1998 ('the Act, 1998'), which is the charging section inter alia reads as under: "3. 14. The provisions of Section 3 of the Rajasthan Stamp Act, 1998 ('the Act, 1998'), which is the charging section inter alia reads as under: "3. Instrument chargeable with duty.- Subject to the provisions of this Act and the exemptions contained in the Schedule, the following instruments shall be chargeable with duty of the amount indicated in the Scheduled as the property duty therefor 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 State on or before the date of commencement of this Act; (b) every instrument mentioned in that Schedule, which, not having been previously executed by any persons, is executed out of the State on or after the said date, relates to any property situate, or to any matter or thing done or to be done in the State and is received in the State ." (emphasis supplied) 15. Further, the provisions of Section 18 and 20 of the Act, 1998 deal with the timing of stamping of instrument executed within/ out of the State and payment of duty on instruments liable to increased duty in the State of Rajasthan, respectively. The provisions of Section 18 and 20 of the Act, 1998, inter alia reads as under: "18. Instruments other than bills and notes executed out of State. - (1) Every instrument chargeable with duty executed out of the State and not being a bill of exchange, or promissory note, may be stamped within three months after it has been first received in the State. (2) Where any such instrument cannot, with reference to the description of stamp prescribed thereof, be duly stamped by a private person, it may be taken within the said period of three months to the Collector, who shall stamp the same, in such manner as the State Government may by rule prescribe, with a stamp of such value as the person so taking such instrument may require and pay for. 20. Payment of duty on certain instrument liable to increased duty in the State of Rajasthan. 20. Payment of duty on certain instrument liable to increased duty in the State of Rajasthan. - When any instrument has become chargeable in any part of India other than the State of Rajasthan with duty under the Indian Stamp Act, 1899 or under any other law for the time being in force in such part and thereafter becomes chargeable with a higher rate of duty in the State of Rajasthan under this Act,- (i) the amount of duty chargeable on such instrument shall be the amount chargeable on it under this Act less the amount of duty, if any, already paid on it in India; and..." (emphasis supplied) 16. The above provisions of Section 3, 18 and 20 of the Act, 1998 makes it abundantly clear that the instrument executed out of the State relating to any property situated in the State is chargeable to stamp duty when the same is received in the State, is required to be stamped within three months after it has been received in the State and the amount of duty chargeable on said instrument shall be the amount chargeable on it under the Act, 1998 less the amount of duty, if any already paid on it. 17. Article 44 of the Schedule with the Act, 1998 provides for stamp duty on 'Power of Attorney' and its clause (ee) relevant in the present case reads as under: "(ee) when power of attorney is given without consideration to transfer or sell immovable property to- (i) the father, mother, brother, sister, wife, husband, son, daughter, grandson or granddaughter of the executants. Two thousand rupees. 18. A bare look at the said article 44 (ee) reveals that the Power of Attorney to transfer or sell immovable property to a son requires payment of stamp duty of Rs. 2000/-. However, admittedly, the Power of Attorney in question (Annex.2) bears stamp duty of Rs.100/- and, therefore, in terms of Section 20 of the Act, 1998 the same is deficient by Rs. 1900/-. 19. Learned counsel for the respondent submitted that the respondent is prepared to pay the deficient stamp duty and penalty and, therefore, appropriate order in this regard may be passed. 20. This Court in Smt. Sunita vs. Municipal Council, Bhilwara & Anr. 1900/-. 19. Learned counsel for the respondent submitted that the respondent is prepared to pay the deficient stamp duty and penalty and, therefore, appropriate order in this regard may be passed. 20. This Court in Smt. Sunita vs. Municipal Council, Bhilwara & Anr. : S.B.Civil Writ Petition No.9977/2013 decided on 10/4/2015 with reference to provisions of Section 42 of the Stamp Act and relying on the judgment of Hon'ble Supreme Court in Chilakuri Gangulappa vs. Revenue Divisional Officer, Madanpalle & Anr., (2001) 4 SCC 197 inter alia laid down as under: "In the present case admittedly the petitioner offered to pay the deficient stamp duty and penalty, which fact is clearly reflected from the order-sheet dated 03.09.2012 (Annex-3) and, therefore, it was necessary for the trial court to itself determine the deficient stamp duty and penalty and give an opportunity to the petitioner to pay the same and on payment the document would have become admissible in evidence." 21. In view thereof, the deficient stamp duty and penalty can be determined by this court as well and be directed to be paid by the respondent. 22. As already noticed hereinbefore, the deficient stamp duty is Rs.1900/- and in terms of proviso (a) (i) & (ii) to Section 39 of the Act, 1998, the respondent would be liable to pay penalty two times the deficient stamp duty i.e. Rs.3800/- and in all Rs.5700/- (duty + penalty). On payment of above deficient stamp duty and penalty by the respondent, the document Annex.2 (Ex.1) would become admissible in evidence. 23. The respondent would be required to pay the deficient stamp duty and penalty in terms of Section 42 of the Act, 1998 and the Tribunal would take appropriate steps in terms of said provision i.e. send an authenticated copy of the instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and send such amount of stamp duty and penalty to the Collector. 24. In view of the above discussion, the writ petition filed by the petitioner is disposed of. The order passed by the Tribunal is upheld to the extent that the document in question does not require any registration. However, for admissibility of the document (Ex.1), the respondent would be required to pay the deficient stamp duty and penalty on the document in question in terms of the directions contained hereinbefore. The order passed by the Tribunal is upheld to the extent that the document in question does not require any registration. However, for admissibility of the document (Ex.1), the respondent would be required to pay the deficient stamp duty and penalty on the document in question in terms of the directions contained hereinbefore. Needful, if desired, be done by the respondent within a period of two weeks.