Punjab-Haryana High Court
Sudhir Jindal And Others vs The State Of Haryana Through Financial ... on 31 March, 2010
Equivalent citations: AIR 2010 PUNJAB AND HARYANA 187, (2010) 3 RECCIVR 665 (2010) 3 PUN LR 253, (2010) 3 PUN LR 253
Author: K. Kannan
Bench: K. Kannan
C.W.P. No.4096 of 2010 (O&M) -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA
AT CHANDIGARH
C.W.P. No.4096 of 2010 (O&M)
Date of Decision:31.03.2010
Sudhir Jindal and others ........Petitioners
Versus
The State of Haryana through Financial Commissioner and Secretary,
Revenue Department, Haryana Civil Secretariat, Chandigarh and
others ....Respondents
Present: Mr. Nitin Jain, Advocate
for the petitioners.
Mr. Ravi Dutt Sharma, DAG, Haryana
for the respondents.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the
judgment ? Yes
2. To be referred to the Reporters or not ? Yes
3. Whether the judgment should be reported in the Digest? Yes
-.-
K. KANNAN J.(ORAL)
1. The petitioner seeks for refund of the value of stamps which, according to him, became "spoiled" on account of inability to get the document registered by a supervening event of the General Power of Attorney, who had executed the document lost the power by revocation of the GPA on 24.01.2006. Some more facts are necessary:
2. The document was prepared for execution of a sale on 13.09.2005 and presented for registration. It appears that NOC from HUDA was required to be obtained by the Registering Officer and communicated to him orally, upon which the petitioner had taken C.W.P. No.4096 of 2010 (O&M) -2- back the original document and sought for NOC on 19.01.2006. On 24.01.2006, the GPA, who had executed the document lost the power to represent. On revocation of the power of attorney, the HUDA passed an order on 03.02.2006 that it was not possible to issue a NOC in view of the loss of authority by GPA. This communication from HUDA is said to have been received by the petitioner on 10.02.2006. The petitioner had made a representation by a letter to the Registering Officer on 10.03.2006 along with the sale deed seeking for refund of the value of stamps. When there was no response, the writ petition had been filed and at the asking of the Court, Sh. Sharma took notice on behalf of the State. In the meanwhile, the State has also replied to the representation pointing out that the plea for return of the value of the stamps was being rejected on account of the fact that it had not been submitted within two months from the date of execution of the sale deed and therefore, the claim could not be entertained.
3. The relevant provisions for considering the issues raised in the case are Section 49 and 50 of the Indian Stamp Act, 1899. Section 49 provides for allowance for "spoiled stamps" and sets out the different circumstances when a document could be said to be spoiled. Section 49 (d) refers to stamps used for an instrument executed by any party and sets out eight circumstances among which sub-clause (2) and (5) become relevant, for these two clauses are relied on by the petitioner and the respondent respectively. Sub- clause (2) refers to a situation where the party, "has been afterwards found unfit, by reason of any error or mistake therein, C.W.P. No.4096 of 2010 (O&M) -3- for the purpose originally intended; sub-clause (5) refers to a party who, "by reason of the death of any person by whom it is necessary that it should be executed, without having executed the same, or of the refusal of any such person to execute the same, cannot be completed so as to effect the intended transaction in the form proposed." Between these two clauses, the contention of the petitioner is that Clause (2) shall be applied, for the stamps had become spoiled by a party, who had become unfit to execute the document. The requirement of the Section is such unfitness must arise by reason of mistake or error therein for the purpose originally intended and in this case the original intention was to allow the GPA to act as such and had by reason of the revocation of the power he had become unfit. In my view, an expression "an error or mistake"
used in sub-section (2) is not an expression of art but it should be rendered flexible enough to admit even a situation of when the power is subsequently withdrawn for Clause 5 which the learned counsel for the State relies on refers to a situation of a party, who refused to act under the instrument. Here it is not a case of refusal, for even if the GPA had not refused and he had consented to admit execution, the document cannot be valid for the power did not exist and it had lapsed. Nor the other situations coming within sub-clause (5) operates such as the refusal to advance any money or refusal or non-acceptance of any office granted for the intended purpose. If, therefore, the stamp had become incapable of use for the purpose for which it was intended then Section 50 sets out the period of limitation. Section 50 contemplates three situations as under: C.W.P. No.4096 of 2010 (O&M) -4-
"50. Application for relief under Section 49 when to be made. - The application for relief under Section 49 shall be made within the following periods, that is to say-
(1) in the cases mentioned in clause (d) (5), within two months of the date of the instrument;
(2) in the case of a stamped paper on which no instrument has been executed by any of the parties thereto, within six months after the stamp has been spoiled;
(3) in the case of a stamped paper in which an instrument has been executed by any of the parties thereto, within six months after the date of the instrument, or, if it is not dated, within six months after the execution thereof by the person by whom it was first or alone executed:
Provided that -
(a) when the spoiled instrument has been for sufficient reasons sent out of (India), the application may be made within six months after it has been received back in [India];
(b) when, from unavoidable circumstances, any instrument for which another instrument has been substituted, cannot be given up to be cancelled within the aforesaid period, the application may be made within six-months after the date of execution of the substituted instrument.
Section 50 (1) would operate in cases where clause (d)(5) operates and in which case the document for securing the relief of refund shall be made within two months from the date of instrument. I have already rejected the contention that Clause (d) (5) will have any application and it is only Clause (d)(2) that will govern the rights of parties. The period of two months in the context in which it appears becomes meaningless, for the petitioner could not have had a pre-sage that the power of attorney would not become valid by a supervening event, which was to take place three months later and that the instrument should have been presented for refund within C.W.P. No.4096 of 2010 (O&M) -5- two months from the date of the instrument. The manner in which the interpretation is cast takes it to an absurd situation, which is therefore to be discarded. Clause 2 refers to a situation where a stamp paper on which no instrument had been executed but it has been spoiled. That situation does not arise. It is sub-clause 3, which will be attracted, because it talks about a case where an instrument, which is executed by any of the parties but which is not capable of being used in the case, that the application should be filed within six months after the date of the instrument. In this case, it was done by the application filed on 10.03.2006 for an instrument which had been executed on 13.09.2005.
4. Under the circumstances, the contention taken by the State is rejected and there shall be a direction in the manner sought for by the petitioner that the respondents shall refund to the petitioner the value of stamps less 10% of its value as prescribed under Section 50(c) of the Indian Stamp Act, 1899.
5. The writ petition is allowed on the above terms. There shall be, however, direction as to costs.
(K. KANNAN) JUDGE March 31, 2010 Pankaj*