Calcutta High Court (Appellete Side)
Abjer Ali Mallick vs Rahima Bibi & Ors on 9 December, 2014
Author: Subrata Talukdar
Bench: Subrata Talukdar
IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE PRESENT:
The Hon'ble Justice Subrata Talukdar CO 2751 OF 2010 Abjer Ali Mallick
-vs.-
Rahima Bibi & Ors.
Mr. Rameswar Bhattacharjee Mr. Ram Uday Bhattacharjee Mr. Soumen Bhattacharjee ....... for the petitioner Mr. R.I. Sardar ....... for the opposite party nos. 1 & 2 Mr. Anupam Kr. Bhattacharyya ....... for the opposite party no. 3.
Heard on : 28/03/2014; 16/04/2014; 07/05/2014;
11/06/2014 & 18/06/2014
Judgment on : 09.12.2014
Subrata Talukdar, J.: In this application under Article 227 of the Constitution of India the petitioner has challenged the order impugned no. 24 dated 26th July, 2010 passed by the Ld. 2nd Civil Court (Junior Division), Serampore in Title Suit No. 118 of 2009.
The brief facts of the case are as follows:-
a) That Schedule 'A' properties belonged at all material times with the defendant nos. 1 & 2, who are the opposite parties in the present application.
b) According to the plaintiff, who is the petitioner in this application the defendant nos. 1 & 2 were aggrieved with the transfer of the suit property in favour of the plaintiff. During the talk of such transfer the defendant no. 3, who is the opposite party no. 3 in this application was present.
According to the terms arrived at between the parties the petitioner/plaintiff would pay the sum of Rs. 25000/- and agreement of sale was to be executed by the defendants no. 1 & 2 in favour of the petitioner/plaintiff. According to the petitioner/plaintiff a sum of Rs. 5000/- was accepted towards execution of the agreement from the plaintiff by the defendant nos. 1 & 2.
c) Since there was an embargo on transfer of land near Delhi Road it was, inter alia, agreed between the parties that when such embargo would be lifted, the suit property will be registered in favour of the petitioner/plaintiff. However, on the defendant nos. 1 & 2/OP nos. 1 & 2 refusing to register the suit property in favour of the petitioner/plaintiff in spite of the latter expressing his readiness and willingness to pay the balance consideration amount the plaintiff filed Title Suit No. 118 of 2009 before the Ld. 2nd Civil Court (Junior Division), Serampore claiming specific performance of contract along with consequential reliefs.
d) In connection with the said suit the petitioner/plaintiff also filed an application under Order 39 Rules 1 & 2 read with Section 151 of the Code of Civil Procedure. The said injunction application was resisted by the defendants/OPS by filing written objection.
Upon hearing the parties by order dated 11th June, 2009 the Ld. Trial Court was pleased to restrain the defendants from transferring the 'A' & 'A-2' suit property till the 25th of June, 2009 with direction upon the defendants to show cause as to why the application for temporary injunction shall not be made absolute. However, on the next date of hearing an objection was raised on behalf of the defendants that the document being the agreement of sale relied upon by the petitioner/plaintiff was insufficiently stamped. The Ld. Trial Court upon consideration of such objection was pleased to record that the said agreement for sale was exhibited and made Exbt. 1 with objection and was referred to the Collector for valuation as provided under the Indian Stamp Act. The Ld. Trial Court further took the view that the plaintiff had accepted the reference to the Collector for valuation and was ready and willing to pay the deficit stamp duty as well as the penalty that may be imposed by the Collector.
The Ld. Trial Court was pleased to consider the provisions of Section 43 of the Indian Stamp Act and opine that a duty is cast upon the Court to fix the Stamp Duty payable irrespective of the fact whether the document is exhibited or not.
Noticing the provisions of Order 7 Rules 5, 7 & 17 of the Code of Civil Procedure, the Ld. Trial Court found that on production of sufficient cause a direction can be given for impounding a document. Accordingly, the Ld. Trial Court impounded the agreement and sent the same to the Collector to ascertain the stamp duty payable. The Ld. Trial Court was of the further opinion that the application for injunction filed by the plaintiff under Order 39 Rules 1 & 2 of the Code of Civil Procedure will be considered only after obtaining the report of the Collector and upon deposit of the deficit Stamp Duty and penalty by the plaintiff.
Being aggrieved the plaintiff has filed the present CO 2751 of 2010. Sri Rameswar Bhattacharya, Ld. Counsel appearing for the petitioner has argued that the ld. Trial Court committed an error in impounding the agreement at the stage of considering the injunction application. According to Sri Bhattacharya, Section 33 of the Indian Stamp Act provides a procedural guideline whereby any authority is entitled to receive evidence including documentary evidence and is also under an obligation to ensure that the interests of revenue are protected. In the event the document is found to be insufficiently stamped such authority is entitled to refer the same to the Collector for valuing the document.
Drawing the attention of this Court to Section 35 of the said Indian Stamp Act, Shri Bhattacharya submits that the said section 35 provides a clear embargo against admitting a document into evidence unless such document/instrument is sufficiently stamped. However, in the facts of the present case the document in issue has not been produced as evidence and the only relief which the Ld. Trial court is required to consider is whether an injunction can be granted at this stage. According to Shri Bhattacharya the document in issue is yet to reach the stage of evidence and therefore at this stage of considering an injunction application such document cannot be impounded.
Shri Bhattacharya further points out that at the stage of considering the relief of injunction the tests of balance of convenience and inconvenience, irreparable loss and making out of a prima facie case are to be weighed. The matter is yet to proceed to trial and is only at the injunction stage. Therefore, according to Shri Bhattacharya, the rigour of the Indian Stamp Act connected to impounding and valuation of documents shall not apply. He has further argued that once the order of injunction has been passed in favour of the plaintiff on 11th June, 2009, the same could not be subsequently put on hold by the Ld. Trial Court.
In support of his arguments Shri Bhattacharya relies upon the following decisions:-
1) AIR 2007 SC 637 in the matter of Shyamal Kumar Roy Vs. Sushil Kumar Agarwal (at paras 15, 16, 18, 20 & 21)
2) (2009) 4 CHN 415 in the matter of GTZ (India Pvt. Ltd.) Vs. Power Electronic Engineers and Ors. (at paras 11, 14, 17, 18 & 19)
3) (2009) 1 CHN 723 in the matter of Kanchilal Paul Vs. Sashti C. Banerjee and Ors. (at para 18, 19 & 20)
4) (2002) 3 CHN 151 in the matter of Biswajit Chakroborty Vs. Mira Sen Ray (at paras 16 & 17) He therefore submits that the order impugned dated 26th July, 2010 be set aside.
Per contra Shri R. I. Sardar, Ld. Counsel appearing for the OP nos. 1 & 2 has submitted that the Ld. Trial Court was pleased to consider the application for injunction filed by the present petitioner and by the order impugned dated 26th July, 2010 refused to grant interim relief to the petitioner/plaintiff. Under the provisions of Order 43 Rule 1 of the Code of Civil Procedure such refusal is appealable. Therefore, Shri Sardar has argued that the present application under Article 227 of the Constitution of India is not maintainable. He submits that the present CO 2751 of 2010 be dismissed as not maintainable.
Heard the parties. Considered the materials on record. In the light of the above noted facts this Court is required to notice the judgment of an Hon'ble Division Bench of this Hon'ble Court in GTZ (India Pvt. Ltd.) vs. Power Electronic Engineers reported in (2009) 4 CHN 415. At paragraph 14 the Hon'ble Division Bench while noticing the judgment in Purna Chandra Chakraborty vs. Kalipada Roy reported in 46 CWN 477 held as follows:-
"14. It is now settled law that failure to stamp a document properly does not affect the validity of the transaction embodied therein but merely renders the document inadmissible in evidence. (See Purna Chandra Chakraborty vs. Kalipada Roy reported in 46 CWN 477). However, in view of the provision contained in Section 35 of the Stamp Act, the Court before which such document is produced has the right to regularize such defect on realization of the appropriate stamp duty and the penalty prescribed in the Act. Therefore, the learned Trial Judge erred in law in holding that simply because the agreement was executed on insufficiently stamped paper, the Court should reject the prayer of injunction. The learned Trial Judge at that stage, could demand from the plaintiff sufficient amount of security to safeguard the interest of the State Revenue but there was no justification of rejecting the prayer of injunction when existence of such agreement and acceptance of earnest money of Rs.5 lakh has been admitted and it has appeared from the materials on record that the defendants Nos.1 and 2 have not returned back the amount of earnest money while cancelling the agreement."
In (2006) 11 SCC 331 the Hon'ble Apex Court in Shyamal Kumar Roy vs. Sushil Kumar Agarwal was pleased to, inter alia, hold that Section 36 of the Indian Stamp Act, 1989 would apply even if a document has been improperly admitted in evidence. It was further held that if a party to the lis intends that an instrument produced by the other party being insufficiently stamped should not be admitted in evidence, such objection must be raised at the appropriate stage. On such objection only, the issue of the document being insufficiently stamped and its admissibility as evidence is required to be determined judicially.
However, the Hon'ble Apex Court in Shyamal Kumar Roy (supra) was pleased to clarify that if no objection has been raised by the aggrieved litigant at the appropriate stage with regard to the admissibility of the document, at a later stage such a party cannot turn around and argue that the document is inadmissible in evidence. At paragraph 28 of Shyamal Kumar Roy (supra) the Hon'ble Apex Court was pleased to notice the judgment of this Hon'ble Court in Biswajit Chakraborty vs. Mira Sen Ray reported in (2002) 2 CLJ 449. At paragraph 29 of Shyamal Kumar Roy (supra) the Hon'ble Apex Court was pleased to notice another judgment of this Hon'ble Court in Muzibar Rahaman vs. Md. Abdullah Molla reported in (2005) 1 CLJ 249 = (2005) 4 CHN 387 with regard to the scope of operation of Section 36 of the Indian Stamp Act.
The said paragraphs 28 & 29 of Shyamal Kumar Roy (supra) read as follows:-
"28. In Biswajit Chakraborty vs. Mira Sen Ray [2002 (2) CLJ 449], the Calcutta High Court was dealing with a case where an objection was raised that the document tendered was insufficiently stamped, holding :
"My reading of the provisions of Sections 33, 35, 38, 39, 40 & 61 of the Indian Stamp Act, 1899 is that when a document is tendered in evidence by a party and an objection is raised by the other side that the document is insufficiently stamped, at that stage, the Court assumes the jurisdiction to impound the document as it was obligatory to apply the mind of the Court in accordance with the relevant provisions of the said Act. The object of Section 33 is to protect the revenue and as such the Court or such person, as referred to in the said section, must however, exercise the powers as envisaged under the said section, if necessary, suo motu, irrespective of the raising of objection by any of the party."
Again, we are not concerned such a question in this appeal.
29. In Mujibar Rahman Mondal v. Md. Abdulla Molla & Ors. [2005 (1) CLJ (Cal.) 249], this Court held:-
"...The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an `exhibit' in the case. Once a document has been marked as an "exhibit" in the case and has been used by the parties in examination and cross-examination of their witnesses, Section 36 comes into operation. Once a document has been admitted in evidence, it is not open either to the trial Court itself or to a Court of Appeal or revision to go behind that order. In the case on hand, the document in question was marked exhibit with objection which leads to show that the objection as to admissibility on the ground that the instrument is not duly stamped has not been judicially determined but it was merely postponed with tentatively marking it as an "exhibit". In such circumstance, the said provision of Section 36, in my view is not attracted..."
The said decision has also no application in the facts and circumstances of this case."
The attention of this Court has also been drawn to another judgment of an Hon'ble Division Bench of this Court in Kanchilal Paul vs. Sasthi C. Banerjee reported in (2009) 1 CHN 723. The Hon'ble Division Bench was pleased to, inter alia, hold that the mere fact that a document is insufficiently stamped is by itself not a ground for discarding the said document while considering the merit of a suit if the party who produces such documents pays the deficit stamp duty as well as the penalty that may be assessed by the Collector under the provisions of the Stamp Act. The Hon'ble Division Bench further noticed that the document in question was marked as Exhibit 1 with objection and the same was referred to the Collector in terms of the provisions of the Stamp Act. The plaintiff had accepted such position and agreed to pay the deficit stamp duty and the penalty. Accordingly, the Hon'ble Division Bench found that there was no bar upon the Ld. Trial Court to consider such document if the plaintiff is ready and willing to pay the deficit stamp duty and the penalty that may be imposed by the Collector. On the above reasoning the Hon'ble Division Bench found error in the order of the Ld. Trial Court dismissing the suit on the only ground that the said Exhibit 1 was insufficiently stamped.
To the mind of this Court the Ld. Trial Court by its order impugned no. 24 dated 26th July, 2010 has correctly noticed the proposition of law that once the document sought to be relied upon is found to be insufficiently stamped and such objection is raised before the Ld. Court, the Ld. Court is required to take judicial notice of such fact. As held in paragraph 23 of Shyamal Kumar Roy's (supra) a duty has been cast upon any Court to apply its mind when an instrument bearing insufficient stamp is brought to its notice. However, such objection must be raised at the first instance and, in the absence of such objection the document cannot be, thereafter, said to be inadmissible in evidence.
It is a fact, as recorded vide the order dated 26th July, 2010 that the present OP/defendant raised objection with regard to the agreement being insufficiently stamped. Therefore, the Ld. Trial Court in the light of the relevant provisions of the Indian Stamp Act took judicial notice of insufficient payment of the stamp duty. The Ld. Trial Court, therefore, found it fit to refer the document to the Collector to ascertain the stamp payable and kept the application for injunction under Order 39 Rules 1 & 2 CPC pending after obtaining the report of the Collector and the deposit of the deficit stamp duty and penalty payable.
This Court is of the considered opinion that under the provisions of the Indian Stamp Act, Ld. Trial Court acted correctly by postponing the consideration of the injunction application till assessment of the duty payable. No illegality was committed by the Ld. Trial Court in the light of the law as discussed above and the injunction proceedings, being an integral part of the main suit, it is facile to argue that two contrary sets of yardstick must be followed - one for the injunction application and the other for hearing the main suit.
Now, taking notice of the argument advanced on behalf of the opposite party that the present application under Article 227 of the Constitution of India is not maintainable this Court finds that the Ld. Trial Court did not finally decide the injunction application but only kept the application pending after obtaining the report of the Collector and upon deposit of the deficit stamp duty and penalty by the plaintiff. In the opinion of this Court the provisions of appeal can be invoked only if the lis was finally disposed of by the Ld. Trial Court and, in view of the fact that the injunction application was kept pending subject to fulfillment of the contingency as directed, it does stand to reason that the order impugned in so far as it is confined to reference of the document in question to the Collector, the argument in favour of filing an appeal cannot be accepted.
In the backdrop of the above discussion the order impugned no. 24 dated 26th July, 2010 does not warrant any interference.
CO 2751 of 2010 is thus dismissed.
There will be, however, no order as to costs.
Urgent certified photocopies of this judgment, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.
(Subrata Talukdar, J.)