Madras High Court
Ramasamy vs Shanmugam on 4 July, 2017
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: . 04.07.2017 CORAM THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN CRP(PD)No.3128 of 2012 and M.P.No. Ramasamy .. Petitioner Vs. 1.Shanmugam 2.Geetha .. Respondents Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, against the order passed in the Memo in O.S.No.350 of 2010, dated 06.07.2012, on the file of the Principal District Munsif Court, Tindivanam. For Petitioner : Mr.P.Mani For Respondents : Mr.A.Devanathan O R D E R
The plaintiff is the civil revision petitioner before this Court, challenging the order of memo in O.S.No.350 of 2010, dated 06.07.2012, on the file of the learned Principal District Munsif Court, Tindivanam.
2.It is the case of the petitioner/plaintiff is that he filed the suit against the respondent/defendant for declaration and for permanent injunction in O.S.No.350 of 2010, on the file of the learned Principal District Munsif Court, Tindivanam. A written statement has been filed denying the allegations set out in the plaint and the respondent/defendant has stating that there is no registered document filed by the petitioner/plaintiff and he denied the oral purchase of the document since the suit schedule of property is Natham Poramboke.
3.While pendency of the above suit, this petitioner/plaintiff has filed a memo before the learned Principal District Munsif, Tindivanam. In the memo, the petitioner/plaintiff states that he filed the suit for declaration and for injunction on the basis of the oral purchase of the suit property from one Govindasamy Gounder S/o Sukuran Gounder. The petitioner/plaintiff also states that oral purchase was followed by delivery of possession of the suit property purchased from the vendor by the petitioner/plaintiff and hence, there is an absolute possession and enjoyment of the suit schedule of property.
4.The petitioner/plaintiff pleaded that the suit property is a Natham Poramboke and Natham Poramboke was surveyed during the year 1993 and persons who were in actual possession and enjoyment of the suit property were granted with patta under the Natham Nilavari Thittam Scheme. Since the petitioner/plaintiff was delivered with the possession of the suit property in the year 1993 by the concerned vendor viz., Govindasamy Gounder was sanctioned with patta by the Revenue Authorities after ascertaining the actual possession and enjoyment of the suit property.
5.It is the further case of the petitioner/plaintiff that though it is oral purchase, but the vendor Govindasamy Gounder has issued a sale receipt, which is not a registered document and therefore, he prayed the learned Principal District Munsif Court, Tindivanam, to send for the sale receipt dated 07.04.1997 for calculating the valuation of the stamp duty and penalty.
6.The petitioner/plaintiff also states that for proving the nature of possession as a collateral purpose, since the petitioner/plaintiff for proving the nature of possession, he prayed the learned District Munsif Court to receive the document for collateral purpose. In the said circumstances, the petitioner/plaintiff has filed a memo undated seeking direction of the learned District Munsif Court, Tindivanam, to impound the document dated 07.04.1997 and to send the same for calculating the stamp duty and penalty.
7.On receipt of the notice in the above memo, the respondent/defendant filed an objection dated 19.04.2012, for the accepting the memo filed by the petitioner. The respondents/defendants state that there is no recital in the document dated 07.04.1997 about the sale receipt and the document dated 07.04.1997 was styled as sale deed and not as sale receipt. Therefore, the petitioner/plaintiff stated that the plaintiff orally purchased the suit property dated 07.04.1997 is false one and it was found for the suit purpose.
8.The respondent/defendant has strongly objecting the document dated 07.04.1997 and send for calculating the stamp duty and penalty since the document should be compulsorily registered and stamped according to law. Therefore, it cannot be cured by way of levy of stamp duty and penalty.
9.It is the further case of the respondents/defendants that though the respondents/defendants filed their written statement dated 15.06.2011 and the suit was posted in the list on 09.0.2012, but noting very well that the petitioner/plaintiff cannot succeed the case, all in sudden the present memo has been filed just to protract the proceedings. The respondents/ defendants also states that the alleged document dated 07.04.1997 cannot be looked into for any purpose. Therefore, the respondents state that the impounding of the said document for stamp duty and penalty is only an eye wash. Therefore, he prayed the learned Principal District Munsif, Tindivanam, to reject the said memo filed by the petitioner with exemplary cost.
10.Considering both side cases, the learned Principal District Munsif, Tindivanam, by order dated 06.07.2012 rejecting the memo on the ground that since the sale receipt should be registered only with the appropriate witnesses, unless the said sale receipt registered with appropriate witnesses, it cannot be marked in the suit. Considering the judgment produced by the respondents/defendants reported in 2000 (2) TLNJ 315, the learned Judge rejected the said document. Challenging the said rejection memo dated 06.07.2012, this petitioner/plaintiff has filed the present civil revision petition before this Court.
11.I heard Mr.P.Mani, learned counsel appearing for the petitioner and Mr.A.Devanathan, learned counsel appearing for the respondents and perused all the materials available on record.
12.It is the case of the petitioner/plaintiff is that since the suit schedule of property is Natham Poramboke land, it cannot be registered, but in the said property was purchased by him by way of oral sale and pursuant to the oral sale, the possession of the suit property was delivered in favour of the petitioner/plaintiff and he is in absolute possession and enjoyment of the same.
13.While pendency of the above, he has filed the sale receipt issued by the vendor of the petitioner/plaintiff Mr.Govindasamy Gounder on 07.04.1997 and sought for the trial Court viz., the learned Principal District Munsif Court, Tindivanam, to impound the document dated 07.04.1997 and send the document for calculating the stamp duty and penalty, since it was not registered. The respondents/defendants had strongly objected for impound and sending the document for calculating the stamp duty and penalty.
14.It is the case of the petitioner/plaintiff is that it was unregistered sale, if it is alleged the petitioner/plaintiff that the document is a sale deed, then it cannot be impounded and send for calculating the stamp duty and penalty, but it is only a sale receipt.
15.As per Section 35 of the Indian Stamp Act, which reads as follows:
35.Instrument not duly stamped inadmissible in evidence, etc.- No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:
Provided that -
(a) any such instrument not being an instrument chargeable with a duty not exceeding twenty paise only or a mortgage of crop (Article 41(a) of Schedule I) chargeable under section 3 with a duty of fifty paise or a bill of exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;
(b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of penalty of one rupee by the person tendering it;
(c)where a contract or agreement of any kind is effected by correspondence consisting of two or more letters, and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;
(d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (Act V of 1898);
(e) nothing herein contained shall prevent the admission of any instrument in any Court, when such instrument has been executed by or on behalf of the Government, or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act.
16.As per Section 35, it is made clear that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped.
17.This Court and the Hon'ble Apex Court in various cases very clearly held that no document shall be admitted in evidence if it is not properly stamped and if already not stamped, then, stamp duty should be paid with penalty as prescribed by the authority. The following cases are supporting the case of the plaintiff:
(1) Indrani v. Sethuraman reported in 2005 (4) MLJ 337 (2) Ranganatha Gramani v. Visalatchi reported in 2007 (5) TC 444;
(3) A.Pathrakali v. R.Senthil Kumaran reported in 2010 (2) MLJ 248 (4) Dinakaran v. Venkatesan reported in 2007 (5) CTC 77 (5) Bipin Shantilal Panchal (Dr. v. State of Gujarat reported in 1996 (1) CTC 579 : AIR 1996 SC 2897 : 1996 (1) SCC 718.
18.This Court in one another judgment reported in SMS Tea Estates Pvt. Ltd. v. Chandmari Tea Co. Pvt. Ltd., reported in 2011 (4) CTC 574 held that unless the stamp duty and penalty due in respect of a document is paid, the Court cannot act upon the said instrument which means that it cannot act upon the said document. This Court in a judgment in the case of Ramasamy Pillai v. Amarajothi reported in 2012 (3) MLJ 699 an unregistered document which was cured by payment of stamp duty and penalty, can be looked into if it is a genuine document and proves any collateral purpose.
19.Therefore, considered the above judgment rendered by this Court and the Hon'ble Apex Court, I am of the view that an unregistered document namely, the present document dated 07.04.1997, it is only a sale receipt, which was cured by payment of stamp duty and penalty, and can be looked into if it is a genuine document and proves any collateral purpose. Therefore, this Court warranting interference in the order passed by the trial Court and accordingly, the order in memo dated 06.07.2012, is set aside.
20.In the result:
(a) this civil revision petition is allowed, by setting aside the order passed in the memo in O.S.No.350 of 2010, dated 06.07.2012, on the file of the learned Principal District Munsif, Tindivanam;
(b) the learned Principal District Munsif, Tindivanam, is directed to impound the document dated 07.04.1997 and send for collecting stamp duty and penalty to the appropriate authority to receive the report within one month from the date of order passed by the learned Principal District Munsif, Tindivanaml;
(c) on receipt of the report for the payment of stamp duty and penalty, the learned Principal District Munsif, Tindivanam, is directed to dispose of the suit within a period of three months thereafter. No costs. Consequently, connected miscellaneous petition is closed.
04.07.2017 Speaking Order Index:Yes vs To The Principal District Munsif, Tindivanam.
M.V.MURALIDARAN, J.
vs Pre-Delivery order made in CRP(PD)No.3128 of 2012 and M.P.No.1 of 2012 04.07.2017