Madhya Pradesh High Court
Manoj Shivhare vs Sunil Kumar Khandelwal on 1 July, 2015
1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
JUSTICE SUJOY PAUL.
Writ Petition No. 8429/12
Manoj Shivhare
Vs.
Sunil Kumar Khandelwal and others
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Shri A.V.Bharadwaj, Advocate for the petitioner.
Shri P.C.Chandil, Advocate for respondents No. 1 & 2.
None for respondent No.3, despite service.
None for respondent No.4.
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ORDER
( 01 / 07 /2015) This petition filed under Article 227 of the Constitution assails the order dated 4.10.2012 whereby the application of defendants No.1 and 2 filed under Sections 35 and 38 of Indian Stamp Act was decided.
2. The plaintiff filed a suit for specific performance of contract. In the said suit, he filed certain documents. Agreements dated 1.11.2010 (Annexure P-3) and 22.9.2011 (Annexure P-4) were filed by the plaintiff. The application was filed by defendants No. 1 & 2 contending that the said agreements are not duly stamped as per Section 35 of the Stamp Act. Unless these documents are duly stamped and penalty is paid, these documents cannot be considered by the Court. Prayer was made to impound these documents as per Section 35 of the Act.
3. Prayer is opposed by filing reply dated 17.7.2012. The Court below by impugned order opined that the said documents/agreements are not duly stamped. After proper stamping of these documents only, the same can be admitted. Accordingly, plaintiff was directed to pay requisite stamp duty and penalty in consonance with Sections 35 and 38 of the Stamp Act. Assailing this order, it is contended by Shri A.V.Bharadwaj that the documents were merely filed by the plaintiff. He is not signatory to the first agreement (Annexure P-3). At this stage, the plaintiff has not even decided whether he would like to rely on 2 the said documents for the purpose of evidence. Thus, it is contended that the Court below has erred in issuing the impugned directions at this stage.
4. Prayer is opposed by Shri P.C.Chandil. He relied on Sections 33, 35 and 38 of the Stamp Act and contended that there is no illegality in the order impugned. Reliance is placed on (2005) 10 SCC 746 (Dr. Chiranji lal (D) by L.Rs. Vs. Hari Das (D) by L.Rs.) in which the Apex Court has interpreted the word "act upon" mentioned in the relevant provision of the Stamp Act. He also relied on 2014(3) M.P.L.J. 16 (Om Prakash Vs. Laxminarayan and others).
5. No other point is raised by learned counsel for the parties.
6. I have heard learned counsel for the parties and perused the record.
7. In the opinion of this Court, the point involved in this matter is no more res integra. In AIR 1961 SC 787 (Government of Uttar Pradesh and others Vs. Raja Mohammad Amir Ahmad Khan), the Supreme Court considered the question whether any person who is a Judge or in-charge of a public office before whom an instrument chargeable with duty is produced or comes in the performance of his functions is required to impound the instrument if it appears to him not to be duly stamped. The question whether this power of impounding arose in the said case? The Apex Court opined that the instrument in dispute was not produced as a piece of evidence nor for its being acted upon, eg., registration, nor for endorsement as under Section 32 of the Stamp Act but was merely brought before the Collector for seeking his advise as to what proper duty would be. The language of Sections 33 and 35 shows that the question of proper stamping document would arise when either one party is trying to act upon the said document or intended to include it as an evidence. Thus, I find force in the argument of Shri Bharadwaj that presently this stage has not been reached. If plaintiff intends to treat the said document as an evidence, at proper stage, Court below may exercise powers under Sections 33 and 35 of the Act.
8. So far argument of Shri Chandil is concerned, in 3 Mohammad Amir Ahmad Khan (supra), the Apex Court clarified the meaning of "act upon" by holding that it means registration or enforcement etc. Mere filing of agreement does not mean that plaintiff intended to either act upon on that or to treat it as an evidence. It is relevant to mention here that during the course of argument, Shri A.V.Bharadwaj fairly admitted that so far first agreement Annexure P-3 is concerned, the plaintiff was not party to this agreement, whereas in the second agreement Annexure P-4, he was party No.2. Shri Bharadwaj fairly submitted that so far second agreement Annexure P-4 is concerned, he is bound to properly stamp it and no fault can be found in the impugned order so far agreement Annexure P-4 is concerned. He confined his attack to the finding relating to first agreement Annexure P-3.
9. Shri P.C.Chandil although relied on certain judgments, the said judgments are based on different factual backdrop. In (2005)10 SCC 746 also no different view is taken by the Apex Court on the aspect of "act upon".
10. In view of aforesaid analysis, in my view, the petitioner deserves partial success. The impugned order dated 4.10.2012 to the extent it relates to the finding relating to first agreement dated 1.11.2010 is concerned, is set aside. It will be open to the Court below to exercise powers under Sections 33,35 and 38 of the Stamp Act at appropriate stage. If the plaintiff intends to rely on the first agreement as an evidence, it will be open for the court below to deal with it in accordance with law. At present since that stage had not come, the Court below was not justified in asking the plaintiff to properly stamp and pay penalty in relation to first agreement. To this extent interference is made. The order dated 4.10.2012 to that extent is set aside.
Petition is partly allowed. No cost.
(Sujoy Paul) Judge vv