Andhra Pradesh High Court - Amravati
Bantupalli Naga Raju vs Yechuri Satya Kameswara Rao on 19 January, 2021
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
CIVIL REVISION PETITION NO.5376 OF 2012
ORDER:-
The present Civil Revision Petition is filed under Article 227 of the Constitution of India by the petitioner/plaintiff questioning the order dated 04.06.2012 passed in G.R.No.3001 of 2012 in unnumbered Original Suit on the file of the learned Principal District Judge, Visakhapatnam whereby his plaint was rejected.
2. The case of the petitioner is that he has filed the suit seeking specific performance of agreement of sale. The Court below has rejected the plaint observing that "Counsel for plaintiff requested further time; already heard him on 23.04.2012 and directed to pay the stamp duty within one week i.e. on or before 30.04.2012; due to Civil Vacation, matter is posted to 02.05.2012 before the Vacation Judge and today before me, inspite of getting registered from the concerned asked for further time, and I directed him to pay the same by evening and waited till 5 P.M., as he failed to pay the same, plaint is rejected". Aggrieved by the same the petitioner is before this Court.
3. Heard Sri ASC Bose, learned counsel for the petitioner.
4. Learned counsel for the petitioner submits that the question of payment of stamp duty in so far as agreement of sale is concerned has to be considered at the time of evidence and the Court below cannot reject the plaint at the threshold even before numbering the suit. He further submits that the Court below should have seen whether the possession is delivered to the petitioner/plaintiff or not and it can be decided at the time of evidence but not at the time of numbering the suit. The learned 2 counsel for the petitioner submits that the Court failed to take into consideration the decision reported in Khasim Saheb vs S.Hanumanthu1 wherein it was held that the question of payment of stamp duty has to be decided at the time of evidence. Learned counsel submits that the Court below has committed grave error in rejecting the plaint at the threshold.
5. Order VII Rule 11 of the Code of Civil Procedure (for short 'C.P.C.') which deals with rejection of the plaint reads thus:
"11. Rejection of plaint - The plaint shall be rejected in the following cases:-
a) where it does not disclose a cause of action;
b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
d) where the suit appears from the statement in the plaint to be barred by any law;
e) where it is not filed in duplicate;
f) where the plaintiff fails to comply with the provisions of Rule 9;
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.
6. This Court in Link Well Electronic Ltd. v. A.P.E.D.C. Ltd.2 held as under:
".... It is well settled that the question of payment of deficit stamp duty on any document will arise only at the stage of evidence and 1 2005 (1) ALD 596 2 1997 (2) An.W.R. 42 3 that too when the document is sought to be tendered in evidence. It is another thing that the office may at any stage examine the documents filed by the parties and necessary steps may be initiated to put the parties to notice that a particular document is not sufficiently stamped or that it requires stamp duty and penalty etc., but the stage for collecting the deficit stamp duty will definitely arise only when the document is sought to be tendered in evidence."
7. In K.Santa Kumari v. V.Susheela Devi3 it was held that it is not proper for the trial Court to consider the question of stamp duty and penalty and ask for payment of those amounts before tendering for evidence when there was a great probability amounting to practical certainty that at the time of considering the admission of the document it will be rejected as it is inadmissible even for want of registration. Section 35 proviso (a) of the Stamp Act, 1899 (for short 'Stamp Act') provides that the instrument which is unstamped or insufficiently stamped shall be admitted in evidence on payment of duty and penalty. This suggests that the collection of stamp duty should not be done before the stage of admissibility of the document in evidence. Once it is found at the stage of admission of document in evidence that it is liable for stamp duty then to consider as to what is the stamp duty that is payable to impound and collect for a document not duly stamped i.e. unstamped or insufficiently stamped the penalty payable in such case is ten times to the value of the stamp duty payable in addition to the actual value as per Section 35 proviso (a) of the Stamp Act. Further if the stamp duty and penalty are collected in advance and later the document is not admitted in evidence, the party concerned would have to pay penalty equal to ten times the 3 1961 (1) An.W.R.425 4 duty or deficit duty or take the chance of getting benefit of referring for impounding under Section 39 of the Stamp Act. In such case the party will loose the chance of having to pay a smaller penalty which will cause undue hardship to the party. Such undue hardship will be avoided if the provisions under Proviso (a) to Section 35 of the Stamp Act are followed.
8. In the present case even before the suit is numbered the Court below has taken objection with regard to payment of stamp duty payable on agreement of sale. As per Order VII Rule 11 of C.P.C. this cannot be the ground for rejecting the plaint and as per the law enunciated by this Court, this aspect can only be gone into at the stage of trial but not at the inception. In view of the same, the order impugned is liable to be set aside.
9. Accordingly, the Civil Revision Petition is allowed. The order dated 04.06.2012 passed in G.R.No. 3001 of 2012 in unnumbered original suit by the learned Principal District Judge, Visakhapatnam is set aside. Consequently, the objection raised by the Court below shall stand over-ruled and the Court below is directed to register the plaint as a suit and proceed further in accordance with law. There shall be no order as to costs.
Consequently, miscellaneous applications pending, if any, shall stand closed.
___________________________ LALITHA KANNEGANTI, J Date : 19.01.2021 IKN 5 THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI (Allowed) CIVIL REVISION PETITION NO.5376 OF 2012 19.01.2021 IKN