Andhra Pradesh High Court - Amravati
Lanka Sreenu, E.G.Dist vs Peddiredla Ramana, E.G.Dist on 24 September, 2019
MVR,J
C.R.P.No.3966 of 2017
1
HON'BLE SRI JUSTICE M. VENKATA RAMANA
CIVIL REVISION PETITION No.3966 OF 2017
ORDER:
This Civil Revision Petition is directed against the order of the Court of learned Senior Civil Judge, Narsipatnam, in I.A.No.138 of 2009 in O.S.No.105 of 2007 dated 10.07.2015.
2. The respondent is the plaintiff and the petitioner is the defendant in the suit.
3. The respondent laid the suit for specific performance basing on an agreement for sale dated 07.04.2005 against the petitioner and in alternative, for refund of the advance amount paid thereunder. The property concerned to this dispute is a dry land in Survey Nos.251-14 and 261 measuring Ac.2.03 cents and Ac.0.67 cents respectively at Vaddipa village, Rolugunta Mandal, Visakhapatnam District.
4. The respondent filed a petition purportedly under Section 40 of Indian Stamp Act to send photo copy of agreement for sale dated 07.04.2005 to Sub-Collector, Narsipatnam for impounding to collect stamp duty and penalty thereon setting out that he laid a suit basing on it and the above document is liable for stamp duty. He further stated that he intended this document to be adduced in evidence on his behalf in the suit.
5. As seen from the material on record, no counter was filed on behalf of the petitioner in the trial Court and instead, opposing the petition, submissions were made.
6. Basing on the material and considering the submissions on behalf of the parties, the trial Court allowed the petition directing MVR,J C.R.P.No.3966 of 2017 2 photocopy of the agreement for sale to be forwarded to the District Registrar for collection of stamp duty and penalty thereon.
7. It is now contended in this revision petition on behalf of the petitioner that the trial Court miserably failed to consider that a photocopy of a document cannot be subject matter of consideration in terms of Section 38 and Section 40 of Stamp Act as applicable to the State of Andhra Pradesh and passing the order under revision basing on irrelevant considerations, is bad. It is further stated on behalf of the petitioner that only original document is liable for such exercise by the District Registrar. Thus, pointing out that there is manifest illegality in the order passed by the learned trial Court, it is requested to allow this revision petition.
8. On behalf of the respondent, the order under revision is supported for the reasons stated therein contending that for the purpose of adducing evidence on his behalf and as secondary evidence, the respondent sought that the photocopy of the agreement for sale be forwarded to the District Registrar, who is the Collector under the Stamp Act for collection of stamp duty and penalty and therefore the order was passed, rightly. Thus, the order under revision is supported on behalf of the respondent.
9. Now, the point for determination is - "Whether it is permissible for collection of stamp duty and penalty basing on a photocopy of agreement for sale and if the order of the trial Court passed in this context, is proper?"
10. In terms of Section 38 of Stamp Act, it is only an original document that can be subject matter of an exercise thereunder. In terms thereof, the Collector under Stamp Act, under Section 40 as MVR,J C.R.P.No.3966 of 2017 3 well as Section 42 shall take appropriate action. Therefore, what is required is production of an instrument, liable for stamp duty and when it is impounded for such purpose, appropriate fee will be levied.
11. It is beyond comprehension as to how a photocopy of the document could be termed as an instrument, which is exigible for such purpose. Certainly, a photocopy of the document does not fall within the scope of Section 2(14) of the Stamp Act, which defines an instrument, which shall include every document by which any right or liability is or purports to be, created, transferred, limited, extended, extinguished or recorded. Even if an extensive meaning is given to this definition, it cannot be stated that it includes a photostat copy of the document.
12. The above view is supported by the judgment of the then composite High Court of A.P. at Hyderabad in M.VENKATA RAO(DIED) PER LR AND ANOTEHR v. M.SHESHAGIRI RAO AND OTHERS1 . In para-6 of this ruling, it was observed in given facts of the case as under:
"6. Admittedly, the document, which is required to be sent for impounding, is a photocopy of the document and the original has not been produced before the Court below. Therefore, the same cannot be an instrument, which can be impounded under the Indian Stamp Act, 1899. May be, the Court below has agreed to receive the said document as secondary evidence, but that does not mean that the same can be impounded."
13. In HARIOM AGRAWAL v. PRAKASH CHAND MALVIYA2 with reference to Madhya Pradesh Stamp Rules, it was observed in para-8, 1 2009(2) ALT 662 2 AIR 2008 SUPREME COURT 166 MVR,J C.R.P.No.3966 of 2017 4 after consideration of earlier rulings by Hon'ble Supreme Court as under:
"8. It is clear from the decisions of this Court and a plain reading of Sections 33, 35 and 2(14) of the Act that an instrument which is not duly stamped can be impounded and when the required fee and penalty has been paid for such instrument it can be taken in evidence under Section 35 of the Stamp Act. Sections 33 or 35 are not concerned with any copy of the instrument and party can only be allowed to rely on the document which is an instrument within the meaning of Section 2(14). There is no scope for the inclusion of the copy of the document for the purposes of the Indian Stamp Act. Law is now no doubt well settled that copy of the instrument cannot be validated by impounding and this cannot be admitted as secondary evidence under the Indian Stamp Act, 1899."
14. In this backdrop, it is not necessary to consider the pleas raised on behalf of the parties in the trial Court. It appears that the respondent contended that the original document is now in custody of the petitioner citing certain circumstances and the version of the petitioner is that he had torne away the same. Pleadings of parties seemingly did not support these contentions. Nonetheless, having regard to very nature of a document, which is only a photocopy, the trial Court could not have forwarded it to the District Registrar(Collector under Stamp Act), purportedly under Section 38 of Indian Stamp Act. For this reason alone, the order under revision has to be set aside.
15. In the result, the revision petition is allowed and consequently, the order in I.A.No.138 of 2009 in O.S.No.105 of 2007 dated 10.07.2015 on the file of learned Senior Civil Judge, Narsipatnam, is set aside. I.A.No.138 of 2009 in O.S.No.105 of 2007 is dismissed. No costs. Interim stay stands vacated.
MVR,J C.R.P.No.3966 of 2017 5 Consequently, miscellaneous petitions pending if any, in this revision petition, shall stand closed.
__________________________
M. VENKATA RAMANA, J
Dt: .09.2019
Rns
MVR,J
C.R.P.No.3966 of 2017
6
HON'BLE SRI JUSTICE M. VENKATA RAMANA
CIVIL REVISION PETITION No.3966 OF 2017
Date: .09.2019
Rns