Madhya Pradesh High Court
Salim vs Sultan Singh @ Sartan Singh on 13 March, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 13 th OF MARCH, 2024
MISC. PETITION No. 5621 of 2023
BETWEEN:-
SALIM S/O KALE KHAN, AGED ABOUT 49 YEARS,
OCCUPATION: AGRICULTURIST VILLAGE
VIKRAMGARH, TEHSIL ALOTE, DISTT. RATLAM
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI PRASANNA R. BHATNAGAR, ADVOCATE)
AND
SULTAN SINGH @ SARTAN SINGH S/O SHANKAR
SINGH, AGED ABOUT 41 YEARS, OCCUPATION:
AGRICULTURIST VILLAGE MUNJ, TEHSIL ALOTE,
DISTT. RATLAM (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AKSHAY JAIN, ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
The petitioner has filed the present petition under Article 227 of the Constitution of India being aggrieved by the order dated 24.06.2023, whereby issue No.5 has been decided against the petitioner.
02. The petitioner filed a suit for recovery of Rs.1,54,000/- which was lended to the respondent vide agreement dated 28.12.2016. On the basis of pleadings in plaint and written statement, the learned trial Court framed five issues for adjudication.
03. The respondent filed an application for deciding issue No.5 as a Signature Not Verified Signed by: RAVI PRAKASH Signing time: 14-03-2024 10:23:37 2 preliminary issue. As per the language of this issue, the Court was required to decide whether the agreement is admissible due to insufficient stamp or not ? The learned trial Court has not only decided the issue under Sections 33 & 35 of the Indian Stamp Act, 1899, but also decided that the agreement is a mortgaged agreement which is compulsorily required under 17 of the Registration Act, 1908, hence, for want of registration and insufficient stamp, the same is not admissible as evidence.
04. Learned counsel for the petitioner submits that so far as insufficient stamp is concerned, the petitioner is ready to pay the deficit stamp duty, for which the Court was required to pass an order under Section 35-A of the Indian Stamp Act as held by this Court in the case of Mahendra v/s Ramvilas Shukla & Others reported in 2023 SCC OnLine M.P. 2577 . So far as the issue of non-registration is concerned, that objection is liable to be raised at the time of tendering of this deed in evidence. It is further submitted that the petitioner has not filed the suit for the possession or specific performance of contract treating the agreement as mortgaged, he has filed the suit simply for recovery of money for which agreement was executed, therefore, by virtue this limited prayer in the suit, the agreement is not required to be registered and for the collateral purpose, it can be looked into.
05. Learned counsel for the respondent submits that the said agreement is mortgaged deed and only in the suit for specific performance, it can be looked into for collateral purpose under the proviso to Section 49 of the Registration Act.. For other purposes, it is required to be registered compulsorily, hence, no interference with the impugned order is warranted.
06. The fact remains that issue No.5 is framed on an issue in respect of Signature Not Verified Signed by: RAVI PRAKASH Signing time: 14-03-2024 10:23:37 3 payment of stamp duty and the Court has taken the decision on the issue of non-registration of sale deed also which is not at appropriate stage that too without amending the issues.
07. In view of the above, impugned order dated 24.06.2023 is hereby set aside. Learned Court is directed to pass the order in view of Section 35-A of the Indian Stamp Act because it is a settled law that no suit can be proceeded unless proper stamp duty is paid on the deed brought to the knowledge of the Court. So far as the issue of non-registration is concerned, the trial Court shall examine the same at an appropriate stage. The finding given by this Court in this order will not come in way of the trial Court for deciding the issue at the appropriate stage.
08. With the aforesaid, Miscellaneous Petition stands allowed.
(VIVEK RUSIA) JUDGE Ravi Signature Not Verified Signed by: RAVI PRAKASH Signing time: 14-03-2024 10:23:37