Orissa High Court
Smt. Pallishree Mohanty vs State Of Odisha And Two Others ....... ... on 18 June, 2021
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Page 1 of 27
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No.22426 of 2019
In the matter of an application under Articles 226 and 227
of Constitution of India.
------------
Smt. Pallishree Mohanty ....... Petitioner
-Versus-
State of Odisha and two others ....... Opp. Parties
For Petitioner : M/s. Ranjan Kumar Nayak,
F.R.Mohapatra, M.K.Panda,
& S.K.Panda
For Opp. Parties : Miss Samapika Mishra,
Additional Standing Counsel
(For OPs 1 and 3)
M/s. Dayananda Mohapatra,
M.Mohapatra, G.R.Mohapatra,
A.Dash, M.R.Pradhan and
J.M.Barik
(For O.P. No. 2)
----------------------------
Order delivered by Virtual Mode on 18.06.2021
------------------------------
P R E S E N T:
THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
----------------------------------------------------------------------
O R D E R
K.R.Mohapatra, J This writ petition has been filed for issuance
of a writ in the nature of Mandamus to direct the
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Collector, Cuttack (OP No.3) to register the General Power
of Attorney (for short, 'GPA') (Annexure-4) and issue
certificate in terms of Section 32 of the Indian Stamp Act,
1899 (for short, 'Stamp Act').
2. Briefly stated, the relevant facts for proper
adjudication of this case are that Plot No.1B/16 in
Sector-10 of Abhinaba Bidanasi, Cuttack (for short, 'the
case land') was allotted in favour of the Petitioner vide
Allotment letter No.6321 dated 27.03.2002 (Annexure-1)
and delivery of possession of the same was made by the
Cuttack Development Authority (for short, 'CDA') in her
favour vide order No.1319 dated 14.01.2003 (Annexure-
2). After approval of the plan, a two storied building has
already been constructed over the case land. The
Petitioner at present is staying in United States of
America (USA). Due to certain compulsions, the Petitioner
is not in a position to come to India frequently for which
she executed a GPA in the name of her husband, namely,
Sri Himansu Sekhar Mohanty in respect of the case land
on 16.08.2013 (Annexure-4) before the Assistant
Consular Officer, Consulate General of India at New York.
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In spite of repeated requests of the Petitioner, lease deed
in respect of the case land was not executed in her favour
for which the Petitioner through her GPA filed W.P.(C)
No.7018 of 2019, which was disposed of on 08.04.2019
with a direction to the Secretary, CDA (OP No.2) to
dispose of the application of the Petitioner for execution
of the lease deed in respect of the case land within a
period of one month from the date of receipt of certified
copy of the said order. However, the Secretary CDA (OP
No.2), vide his letter No.6697/CDA dated 11.05.2019
(Annexure-4 series) intimated the attorney of the
Petitioner, namely, Sri Himansu Sekhar Mohanty that
since the GPA was executed outside India, i.e., at New
York by the Petitioner, it was required to be registered
before the competent authority, namely, District Sub-
Registrar, Cuttack. Hence, he was requested to register
the document/instrument and submit the same before
the CDA for taking further action on the application. It is
further contended in the writ petition that the Petitioner
and her family members are suffering from acute
financial stringency and the Petitioner is also required to
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repay some personal loans for which she has taken
financial assistance from a prospective purchaser of the
case land, namely, Abinash Samal. As the deed of
transfer could not be executed within a reasonable time
and in the meantime two years have already elapsed, the
prospective purchaser is pressing hard to return the
advance money, but the Petitioner is not in a position to
repay the same.
2.1 After taking return of the document from CDA,
the Petitioner ascertained that the GPA under
Annexure-4 is required to be submitted before the
Collector, Cuttack (OP No.3) for issuance of necessary
certificate in terms of Section 32 of the Stamp Act.
Accordingly, the Petitioner has already submitted the
original document before the Collector, Cuttack (OP No.3)
to do the needful. Till date, the Collector, Cuttack has not
taken any action on the same for which the aforesaid
relief is sought for.
3. The Opposite Party No.3, Collector and District
Magistrate, Cuttack filed his counter affidavit stating
inter alia that under Section 31 of the Stamp Act, the
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Collector is required to determine the duty, if any, to be
paid on the instrument only when a person applies for
the same. When an application is brought to the notice of
the Collector under Section 31 of the Stamp Act, the
Collector shall certify by endorsement on such document
that the stamp duty (stating the amount) with which the
instrument is chargeable has been paid under Section 32
of the Stamp Act. The Petitioner, in the instant case, has
not filed any application as required under Section 31 of
the Stamp Act. Had it been submitted in terms of Section
31 of the Stamp Act it could have been adjudicated and
considered for issuance of certificate under Section 32 of
the said Act. It is further contented that proviso (b) to
Sub-section (3) of Section 32 of the Stamp Act envisages
that it is not obligatory on the part of the Collector to
endorse any instrument executed out of India and
brought before the Collector after expiration of three
months from the date of its first receipt in India. The
certificate issued under Section 32 of the Stamp Act shall
be recognized under Section 33 of the Indian Registration
Act, 1908. But, due to non-compliance of the aforesaid
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provision of the Stamp Act, the case of the Petitioner
needs no consideration and a prayer is made for
dismissal of the writ petition.
4. Mr. Nayak, learned counsel for the Petitioner
reiterating the averments made in the writ petition made
his legal submissions to the effect that an instrument
executed out of India should be presented before the
concerned District Collector within three months from the
date when it is first received in India. Although
applicability of the provisions of the Limitation Act, 1963
(for short, 'Limitation Act') to Sections 31 and 32 of the
Stamp Act is not specifically provided under the Stamp
Act itself, but in view of the language and tenor of Section
29 (2) of the Limitation Act Sections 4 to 24 of the
Limitation Act are applicable to the Stamp Act. Thus, the
Collector, Cuttack (OP No.3) has the power to consider
and issue certificate under Section 32 of the Stamp Act, if
an application under Section 31 along with the petition
under Section 5 of the Limitation Act is presented before
him beyond the three months as stipulated under proviso
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(b) to Sub-section (3) of Section 32 of the Stamp Act. He
accordingly prayed for such a direction.
4.1 He further submitted that unlike Section 125 of
the Electricity Act, 2003 and Section 37 of the Arbitration
and Conciliation Act, 1996, there is any restriction in the
provisions under Sections 31 and 32 of the Stamp Act,
which would exclude the applicability of the provisions
under Section 4 to 24 of the Limitation Act. He made an
alternate argument that Section 31 of the Stamp Act itself
does not specify any period of limitation to make an
application to the Collector for adjudication with regard
to adequacy of stamp duty paid on instrument. Section
32 of the Stamp Act comes into operation after
adjudication with regard to the duty chargeable on the
instrument. If the instrument is brought before the
Collector within three months (State amendment) from
the date when it is first received in India, the applicant
would be entitled to a certificate to the effect that the
instrument so produced has been properly stamped. In
support of his case, Mr. Nayak, learned counsel for the
Petitioner, placed reliance on a decision of the Kerala
Page 8 of 27
High Court in the case of M.P. Rajeswaran Nair -v- The
District Collector and others, reported in 2009 SCC
Online Ker 2436, which reads thus:-
"7. This is all the more so, since under Section
31 an unexecuted document can also be brought
for adjudication. The limitation prescribed under
proviso to Section 32 applies only in respect of
documents brought after the expiry of one month
from the date of its execution. Therefore, for
attracting the limitation under the proviso to
Section 32, the document has to be one which has
been executed. That itself shows that two
sections are not interdependent. Further, Section
32 becomes applicable only after the Collector
determines either the instrument is fully stamped
or stamp duty is payable or the instrument is not
chargeable with duty at all. Therefore, the
question of application of Section 32 arises only
after adjudication under Section 31. Further, if
the limitation under the proviso to Section 32 is
held to be applicable to Section 31 also, then even
if an instrument is properly stamped and it is
disputed after one month from its execution, it
would become impossible for a person to get an
adjudication as to the proper stamp duty by the
Collector, which cannot be the intention of the law
maker while incorporating the limitation in the
proviso to Section 32. This is further evident from
the language of the proviso. The words "nothing
in this Section shall authorise the Collector to
endorse" puts an embargo only on the
endorsement and not on the adjudication under
Section 31. Therefore, clearly the limitation
prescribed under the proviso to Section 32 is not
application to adjudication of the proper stamp
duty under Section 31."
4.2 Pursuant to the direction of this Court in W.P.(C)
No.7018 of 2019, which was disposed of on 08.04.2019,
the authority under CDA vide its letter No.6697 dated
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11.05.2019, directed the Petitioner to register the
document and then submit the same to take further
action. In that process, more than two years had elapsed.
Thereafter, the Petitioner had to run from pillar to post
and ultimately came to learn that she has to file an
application under Section 31 of the Stamp Act to get a
certificate from the Collector under Section 32 of the
Stamp Act with regard to adequacy of the stamp on the
instrument. Further, the Petitioner due to restriction of
pandemic of COVID-19 is unable to come to India to
execute a fresh GPA to get the lease deed executed in her
favour and transfer of the case land in favour of Sri
Abinash Samal following due procedure of law. As such,
the Petitioner is in a precarious condition and unless
prayer made in the writ petition is granted, she will suffer
irreparable loss.
5. Miss Samapika Mishra, learned Additional
Standing Counsel made her submissions referring to the
counter affidavit and contended that the provision of
Section 29(2) of the limitation Act is not applicable to the
case at hand. It is her submission that on a conjoint
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reading of Sections 31 and 32 of the Stamp Act makes it
clear that the instrument is to be brought before the
Collector of the district under Section 31 of the said Act
and if the Collector after adjudication finds that the
document has been properly stamped, he shall make an
endorsement to that effect and issue certificate
accordingly under Section 32 of the Stamp Act. Proviso
(b) to Sub-section (3) of Section 32 of the Stamp Act
envisages that it is not obligatory on the part of a
Collector to endorse the instrument, which is executed or
first executed out of India and brought before him after
expiration of three months from the date it is first
received in India. Admittedly, the Petitioner has not yet
produced the instrument along with an application under
Section 31 of the Stamp Act for issuance of a certificate
under Section 32 of the Stamp Act. Thus, Collector,
Cuttack is not authorised to entertain any application
under Section 31 of the Stamp Act intended to be filed by
the petitioner in view of proviso (b) to Sub-section (3) of
Section 32 of the Stamp Act. Limitation provided in the
proviso (b) to Sub-section (3) of Section 32 is different
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from the period prescribed under the Schedule in the
Limitation Act. Thus, in view of Section 29 of the
Limitation Act, Sections 4 to 24 of the Limitation Act will
not apply to the Stamp Act. She also relied upon the case
law in the case of Union of India Vs. Popular
Construction Co., reported in (2001) 8 SCC 470 and
case law in the case of M/s. Simplex Infrastructure Ltd.
Vs. Union of India, reported in AIR 2019 SC 505 and
submitted that the provision of Sections 4 to 24 of the
Limitation Act will not be applicable to the special statute
where a period of limitation other than the Schedule of
the Limitation Act has been provided. Giving an
illustration of Section 125 of the Indian Electricity Act,
2003, Miss Mishra, learned Additional Standing Counsel
placed reliance on the case law in the case of
Chhattisgarh State Electricity Board Vs. Central
Electricity Regulatory Commission and Ors., reported
in AIR 2010 SC 2061 and submitted that where limitation
other than the Schedule of the Limitation Act has been
provided in any special statute, Sections 4 to 24 of the
Limitation Act will not be made applicable to such
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provisions of the special law. Hence, she contended that
the claim of the Petitioner being hopelessly time barred
the Collector, Cuttack (OP No.3) has no jurisdiction to
adjudicate and endorse the instrument presented by the
Petitioner.
6. Mr. Mohapatra, learned counsel appearing for
CDA, although did not file counter affidavit, but assisted
the Court in making his legal submissions. It is his
submission that since no direction has been sought for
against the CDA-opposite party No.2, it did not feel
necessary to file counter affidavit. It is his submission
that the Stamp Act and the Rules framed there under do
not provide either application or exclusion of the
provisions of the Limitation Act to it. Section 3 of the
Limitation Act provides that subject to provisions
contained under Sections 4 to 24 of the Limitation Act
(both inclusive) every suit instituted, appeal preferred,
and application made after the prescribed period shall be
dismissed, although limitation has not been set up as a
defence. Section 5 of the Limitation Act enables a party to
file an appeal or application with a petition seeking
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condonation of delay and the Court is competent to
condone the delay in case sufficient cause is assigned to
the satisfaction of the said Court. A plain reading of
Section 29(2) of the Limitation Act makes it clear that
period of limitation provided in a special or local law shall
be the period of limitation as if it is prescribed under the
Schedule of the Limitation Act. But the applicability of
Sections 4 to 24 (both inclusive) shall be subject to the
extent to which and insofar as they are not expressly
excluded by said special or local law. The said provision
came under interpretation before the Constitutional
Bench of the Hon'ble Supreme Court in the celebrated
case reported in AIR 1964 SC 1099 (Vidya Charan
Sukla Vs. Khubchand Baghel). Interpreting the
provision of Section 29(2) of the Limitation Act with
reference to an Election Appeal preferred under 116(A) of
the Representation of People Act, 1951, the majority view
of the Hon'ble Supreme Court was that if the
requirements of Section 29(2) of the Limitation Act are
satisfied, provisions of Sections 4 to 24 of the said Act
will be made applicable to the local or special Act. It came
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up for consideration again in the reported case of Mukri
Gopalan Vs. Cheppilat Puthanpurayil Aboobacker,
reported in (1995) 5 SCC 5, wherein at paragraphs-8 and
9, it has been observed as follows:-
"8. xxx xxx xxx A mere look at the aforesaid
provision shows for its applicability to the facts of
a given case and for importing the machinery of
the provisions containing Sections 4 to 24 of the
Limitation Act the following two requirements
have to be satisfied by the authority invoking the
said provision.
(i) There must be a provision for period
of limitation under any special or local law in
connection with any suit, appeal or application;
(ii) The said prescription of period of
limitation under such special or local law should
be different from the period prescribed by the
Schedule to the Limitation Act.
9. If the aforesaid two requirements are
satisfied the consequences contemplated by
Section 29(2) would automatically follow. These
consequences are as under:-
(i) In such a case Section-3 of the
Limitation Act would apply as if the period
prescribed by the special or local law was the
period prescribed by the Schedule;
(ii) For determining any period of
limitation prescribed by such special or local law
for a suit, appeal or application all the provisions
containing Sections 4 to 24 (inclusive) would
apply insofar as an to the extent to which they
are not expressly excluded by such special or
local law."
After a thorough analysis, at paragraph-10 it is held as
follows:
"10. ............It is now well settled that a situation
where in a period of limitation is prescribed by a
special or local law for an appeal or application
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and for which there is no provision made in the
schedule to the Act, the second condition for
attracting Section 29(2) would get satisfied. As
laid down by a majority decision of the
Constitution bench of this Court in the case of
Vidyacharan Shukla Vs. Khubchand Baghel and
Ors. (AIR 1964 SC 1099), when the first schedule
of the Limitation Act prescribes no time limit for a
particular appeal, but the special law prescribes
a time limit for it, it can be said that under the
first schedule of the Limitation Act all appeals can
be filed at any time, but the special law by
limiting it provides for a different period. While
the former permits the filing of an appeal at any
time, the latter limits it to be filed within the
prescribed period. It is therefore, different from
that prescribed in the former and thus Section
29(2) would apply even to a case where a
difference between the special law and Limitation
Act arose by the omission to provide for limitation
to a particular proceeding under the Limitation
Act."
In the case of Popular Construction Co. (supra),
Hon'ble Supreme Court had the occasion to consider
applicability of the Limitation Act to the Arbitration and
Conciliation Act, 1996 in view of language employed in
Section 34(3) of the said Act, wherein at paragraphs-6
and 8, it has been held as follows:-
"6. On an analysis of the section, it is
clear that the provisions of Section 4 to 24 will
apply when :
(i) There is a special or local law which
prescribes a different period of limitation for any
suit, appeal or application; and
(ii) The special or local law does not
expressly exclude those sections.
xxx xxx xxx xxx xxx xxx
8. Had the proviso to Section 34 merely
provided for a period within which the court could
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exercise its discretion, that would not have been
sufficient to exclude Section 4 to 24 of the
Limitation Act because "mere provision of a period
of limitation in howsoever peremptory or
imperative language is not sufficient to displace
the applicability of Section-5."
Further, the Hon'ble Supreme Court in the case of
Chhattisgarh State Electricity Board (supra) had the
occasion to consider the applicability of Limitation Act
with reference to Section 125 of the Indian Electricity Act,
2003, wherein at paragraph-32 it has been held as
follows:-
"In view of the above discussion, we hold
that Section 5 of the Limitation Act cannot be
invoked by this Court for entertaining an appeal
filed against the decision or order of the Tribunal
beyond the period of 120 days specified in
Section 125 of the Electricity Act and its proviso.
Any interpretation of Section 125 of the Electricity
Act which may attract applicability of Section 5 of
the Limitation Act read with Section 29(2) thereof
will defeat the object of the legislation, namely, to
provide special limitation for filing an appeal
against the decision or order of the Tribunal and
proviso to Section 125 will become nugatory."
It was his submission that in view of the language and
tenor of Section 34(3) of the Arbitration and Conciliation
Act, 1996 and Section 125 of the Indian Electricity Act,
2003, limiting the scope specifically, the statutory period
to invoke the said provisions, the provisions of Limitation
Act would not be applicable in such cases. But in the
Page 17 of 27
instant case, there is no such prohibition or restriction
under Sections 31 and 32 of the Stamp Act. As such,
Section 4 to 24 of the Limitation Act will apply to the case
at hand in full force. He also reiterated an alternate
argument raised by Mr.Nayak, learned counsel for the
Petitioner and submitted that the Petitioner may make an
application for adjudication with regard to adequacy of
stamp on the instrument before the Collector along with
an application under Section 5 of the Limitation Act,
which can be considered in accordance with law.
7. Taking into consideration the rival contentions
raised by learned counsel for the parties, the question
that crops up for consideration is whether the provisions
of Limitation Act can be made applicable to Sections 31
and 32 of the Stamp Act.
8. Section 31 of the Stamp Act makes provision for
adjudication with regard to adequacy of stamp duty paid
on the instrument. It provides that when a person brings
an instrument to the Collector and applies to have his
opinion as to the duty (if any) with which it is chargeable
and pay fees as directed, the Collector shall determine
Page 18 of 27
the duty (if any) with which such instrument is
chargeable. Section 32 of the said Act makes provision for
issuance of certificate by the Collector. It provides that
when an instrument is brought to the Collector under
Section 31, which in his opinion, one of a description
chargeable with duty the Collector shall certify by
endorsement on such instrument that the full duty
(stating the amount), with which it is chargeable has
been paid. When he is of the opinion that the instrument
is not chargeable with duty, the Collector shall certify in
the manner as provided that such instrument is not so
chargeable. Sub-section (3) of Section 32 is relevant for
our consideration, which reads as follows:-
"32. Certificate by Collector-
(1) xx xx xx
(2) xx xx xx
(3) Any instrument upon which an
endorsement has been made under this section,
shall be deemed to be duly stamped or not
chargeable with duty, as the case may be; and, if
chargeable with duty, shall be receivable in
evidence or otherwise, and may be acted upon
and registered as if it had been originally duty
stamped :
Provided that nothing in this section shall
authorize the Collector to endorse -
(a) Any instrument executed or first executed in India
and brought to him after the expiration of one
month from the date of its execution or first
execution, as the case may be;
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(b) Any instrument executed or first executed out of
India and brought to him after the expiration of
three months after it has been first received in
India; or
(c) Any instrument chargeable with a duty not
exceeding then naye paise, or any bill of
exchange or promissory note, when brought to
him, after the drawing or execution thereof, on
paper not duly stamped.
9. On a close scrutiny of Sections 31 and 32 of the
Stamp Act, it is apparent that proviso (b) to Sub-section
(3) of Section 32 makes it clear that the Collector is not
authorized to endorse any instrument executed or first
executed out of India and brought to him after expiration
of three months after it was first received in India. In the
instant case, there is no dispute to the fact that the GPA
in question was executed by the Petitioner on 16.08.2013
before the Assistant Consular Officer, office of Consulate
General of India at the Embassy of India in New York,
USA. Although the date on which it was for the first time
received in India is not available in the writ Petition, but
it is not in dispute that the document was presented
before the Collector, Cuttack (OP No.3) for issuance of a
certificate after expiration of three months from the date
when it is first received in India.
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10. Thus, the question for consideration is as to
whether the delay in presentation of an instrument can
be condoned by the Collector for issuance of a certificate
under Section 32 of the Stamp Act.
11. Section 3 of the Limitation Act provides that
subject to provisions contained under Sections 4 to 24 of
the Limitation Act every suit instituted, appeal preferred,
and application made after the prescribed period shall be
dismissed, although limitation has not been set up as a
defence. However, Section 5 of the Limitation Act provides
that, an appeal or any application, (other than an
application under Order XXI Code of Civil Procedure,
1908) may be admitted after prescribed period, if the
appellant or applicant, as the case may be, satisfies the
Court that he has sufficient cause for not preferring the
appeal or making application within such period as
provided under the Schedule to the Limitation Act. But,
no period of limitation to make an application under
Section 31 is provided in the Schedule of the Limitation
Act. Section 31 of the Stamp Act also does not provide
any period of limitation to make such an application. It is
Page 21 of 27
only the proviso (b) to Sub-section (3) of Section 32 of the
Stamp Act provides that Collector is not authorised to
make an endorsement if the instrument executed out of
India is brought before him after expiration of three
months of its first receipt in India. It impliedly stipulates
that in the aforesaid contingency an application under
Section 31 of the Stamp Act should be made within the
period provided in proviso to Section 32(3). Kerala High
Court in the case of M.P.Rajeswaran Nair (supra)
relying upon a decision of the Madras High Court in the
case of Y.A.A.V.R. Sethuraman Chettiar vs
K.K.R.M.R.M. Ramanathan reported in AIR 1946
Madras 437, at paragraph-10 took a view as under:-
"10. As held in that judgment if an executed
instrument is produced for adjudication as to
proper stamp under Section 31, after one month
of its execution, the other consequences
applicable to production of an insufficiently
stamped instrument before a person in charge of
a public office under other provisions of the
Kerala Stamp Act would necessarily follow and
after adjudication of the proper stamp, if the
Collector finds that the same is insufficiently
stamped he has to proceed further against that
instrument under those provisions. In other
words, if an executed instrument is produced
before the Collector under Section 31, within one
month, even if the Collector finds that the
instrument is insufficiently stamped, the
instrument would not attract penalty, and the
Collector shall make the endorsement
Page 22 of 27
under Section 32, if the party pays the deficit
stamp whereas if it is produced after one month,
it would, and the Collector cannot make the
endorsement which is the effect of the limitation
prescribed under the proviso to Section 32,
instead the Collector has to, after adjudication of
the proper stamp, proceed either under Sections
33 and 39 read with Section 41 or under Section
40 read with Section 41."
Interpreting relevant provisions of the Stamp Act, Kerala
High Court held that if a person seeks adjudication
beyond the time limit prescribed under Section 32 of the
Stamp Act, the Collector has to first decide whether the
instrument is duly stamped for which no period of
limitation is provided and if the same is not duly
stamped, the Collector shall impound the instrument and
require payment of the additional duty chargeable on the
instrument together with the prescribed penalty¸ if any.
However, the issue involved in the instant case is
completely different. Unless a certificate is issued under
Section 32 of the Stamp Act, the adjudication of
application under Section 31 will be meaningless. As
such, the restriction provided in proviso (b) to Sub-
section (3) of Section 32 of the Stamp Act clearly applies
to this case.
Page 23 of 27
12. Section 29(2) of the Limitation Act read as
follows:-
"29. Savings.--
(1) xx xx xx
(2) Where any special or local law prescribes
for any suit, appeal or application a period of
limitation different from the period prescribed by
the Schedule, the provisions of section 3 shall
apply as if such period were the period
prescribed by the Schedule and for the purpose of
determining any period of limitation prescribed for
any suit, appeal or application by any special or
local law, the provisions contained in sections 4
to 24 (inclusive) shall apply only in so far as, and
to the extent to which, they are not expressly
excluded by such special or local law."
It makes a provision that when a special or local law
prescribes period of limitation different from the period
prescribed in the Schedule of the Limitation Act, the
provision of Section 3 of the Limitation Act shall apply as
if such period were the period prescribed by the
Schedule. However, Sections 4 to 24 of the Limitation Act
will only apply insofar as and to the extent to which they
are not expressly excluded by such special or local law.
The Hon'ble Supreme Court in the case of Popular
Construction Co. (supra) had the occasion to deal with
applicability of the Limitation Act in view of the provision
under Section 34(3) of the Arbitration and Conciliation
Page 24 of 27
Act, 1996. Proviso (b) to Sub-section (3) of Section 34 of
the Arbitration and Conciliation Act makes it clear that if
the Court is satisfied that the applicant is prevented by
sufficient cause from making an application within a
period of three months as provided under Sub-section (3),
it may entertain an application within a further period of
thirty days, but not thereafter. Thus, this special Act
specifically puts a restriction to applicability of Section 5
of the Limitation Act in view of language employed under
the proviso (b) to Sub-section (3) as aforesaid.
Accordingly, discussing the said provision Hon'ble
Supreme Court held that Sections 4 to 24 of the
Limitation Act has no application to the said provisions.
In view of the above, no application under Section 5 of
the Limitation Act can be entertained after the extended
period of 30 days provided therein.
13. Likewise, in the case of Chhattisgarh State
Electricity Board (supra), the Hon'ble Supreme Court
interpreting the applicability of the Limitation Act to the
Indian Electricity Act, 2003 held that in view of proviso to
Section 125 of the Electricity Act, 2003 any interpretation
Page 25 of 27
to attract the provision of Section 5 of the Limitation Act
read with Section 29(2) thereof will defeat the object of
the legislation, namely, to provide special limitation for
filing appeal or against the decision of the Tribunal and
the proviso to Section 125 will become nugatory.
13.1 Such is not the case at hand. As discussed
earlier, although no period of limitation is prescribed to
make an application under Section 31 of the Stamp Act,
but in view of the proviso (b) to Sub-section (3) of Section
32 of the said Act¸ it becomes imperative on the part of
the applicant to make an application under Section 31 of
the Stamp Act within a period of three months from the
date, when an instrument executed out of India, is first
received in India. There is no restriction under the
aforesaid provision to receive any application beyond the
period of three months, as stipulated in Arbitration and
Conciliation Act, 1996 or in Electricity Act, 2003. Thus,
in view of the discussions made above and in view of the
ratio decided in the case of Vidya Charan Sukla (supra)
and Mukri Gopalan (supra), I am of the considered
opinion that Section 29(2) of the Limitation Act is
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squarely applicable to the case at hand. The Application
under Section 31 of the Stamp Act along with a petition
under Section 5 of the Limitation Act explaining the
cause for such delay can be received and adjudicated by
the Collector for issuance of a certificate of endorsement
under Section 32 of the Stamp Act, when an instrument
is brought before the Collector after three months of its
first receipt in India.
14. Accordingly, the writ petition is allowed to the
extent stated above and it is directed that in the event the
Petitioner makes an application within a period of two
months under Section 31 of the Stamp Act along with a
petition under Section 5 of the Limitation Act enclosing
the instrument in original for which the certificate of
endorsement is sought for under Section 32 of the Stamp
Act, the Collector, Cuttack (OP No.3) shall receive and
adjudicate the same in accordance with law giving
opportunity of hearing to the parties concerned.
15. As the restrictions due to resurgence of COVID-
19 situation are continuing, learned counsel for the
parties may utilize a printout of the order available in the
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High Court's website, at par with certified copy, subject
to attestation by the concerned Advocate, in the manner
prescribed vide Court's Notice No. 4587 dated 25th
March, 2020 as modified by Court's Notice No. 4798
dated 15th April, 2021.
................................
K.R. Mohapatra,J.
Orissa High Court, Cuttack. Dated the 18th June, 2021/ss