Madhya Pradesh High Court
Kailash Agrawal vs Surendra Singh on 8 May, 2017
1
W.P. No.3835/2015
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SB : HON'BLE MR. JUSTICE S.A. DHARMADHIKARI
W.P. No. 3835 of 2015
Kailash Agrawal
Vs.
Surendra Singh
Whether reportable :- Yes /No
__________________________________________________________
For Petitioner : Shri S.K. Shrivastava, Advocate.
None for the respondent even though served.
ORDER
(Delivered on this Day of 8th May, 2017) In this petition under Article 227 of Constitution of India, the petitioner has assailed the order dated 25/03/2015 (Annexure P/1) passed by 3rd Civil Judge, Class-II, Ashoknagar, Dist. Ashoknagar (M.P.), whereby, the application filed by the petitioner under section 33, 35 & 38 of Indian Stamps Act, 1989 (for brevity, 'Act') has been rejected.
2. Brief facts leading to filing of this case are that the petitioner/ plaintiff had entered into an agreement to sale dated 13/06/2013 with regard to sale of old house situated in Kasba Ashoknagar. It was agreed between the parties that the sale deed shall be executed upto 25/06/2013. The petitioner insisted the respondent to execute the sale deed. However satisfactory response was not received, therefore, legal notice dated 14/08/2013 was served on the respondent. Even then 2 W.P. No.3835/2015 sale deed was not executed by the respondent. Having no option, the petitioner filed a suit for specific performance of the agreement dated 13/06/2013.
3. Written statement was filed by the respondent denying the plaint averments. It was pleaded that the plaintiff by playing fraud had manage to execute the agreement.
4. After issues were framed and the case was fixed for evidence, the petitioner / plaintiff moved an application under sections 33, 35 & 38 of the Act for the purpose of impounding the agreement dated 13/06/2013 with a further prayer that the agreement dated 13/06/2013 may be sent to the Collector of Stamps for the purpose of impounding.
5. The respondent denied the averments of the application by filing reply that the agreement is forged and, therefore, the application filed by the plaintiff is not maintainable.
6. Learned trial court has held that agreement dated 13/06/2013 was required to be compulsorily registered under the Registration Act, 1908. It is further held that the agreement is not properly stamped and, therefore, the same is not admissible in evidence. Accordingly, the application stood rejected.
7. The contention of learned counsel for the petitioner is that the trial court has committed error in not considering the applicability of the provisions of Indian Stamps Act and the Registration Act, though the application was considered for sending the document for impounding, however, the same was rejected on the ground of provisions of Registration Act. It is further contended that as per agreement dated 13/06/2013, the petitioner/plaintiff had paid Rs. 60,000/- and had taken over the possession of the property. The question of payment of stamps duty is a curable defect and if the document is not 3 W.P. No.3835/2015 properly stamped, then deficit fees can be cured by way of filing application under section 33, 35 & 38 of Indian Stamps Act. The trial court while considering the said application has given the finding that since the agreement is not registered, therefore, the application filed by the plaintiff cannot be considered. It is further contented that there is no bar under the Indian Stamps Act or Indian Registration Act that an unregistered document cannot be sent for impounding under section 33, 35 & 38 of the Act. The trial court has made a wrong interpretation of the provisions, by placing reliance on the decision of the Apex Court in the case Avinash Kumar Chauhan vs. Vijay Krishna Mishra reported in (2009) 2 SCC 532 without considering para 22 of the said decision. In para 22 it has been held that statutory obligation of the court is to send the document for impounding, if it is found that the document produced in evidence is not properly stamped. Learned counsel for the petitioner further went on to submit that the trial court did not consider the provisions of section 49 of the Registration Act in which it has been clearly provided that unregistered document affecting any immovable property will be received as an evidence in a suit for specific performance, therefore, non-registration of document has nothing to do with the payment of stamp duty. There is no provision under the law which prohibits that the document if unregistered cannot be sent for impounding. Learned trial court was absolutely wrong in coming to the conclusion that the document being not registered document, therefore, the same cannot be taken as evidence. Learned counsel for the petitioner has placed reliance on the decision of this Court in the case of Satyanarayan S/o Nathulalji Gaud vs. Ram Singh deceased through Lrs. Prithwi Singh and Ors. reported in 2007 (3)MPLJ 384 in support of the aforesaid 4 W.P. No.3835/2015 contentions.
8. On the other hand, no one appears on behalf of the respondent even though served. However, reply was filed before the trial court to the application filed by the petitioner under sections 33, 35 & 38 of Indian Stamps Act wherein it has been contended that no such agreement was entered into and no possession of the suit property was handed over to the petitioner. The agreement is forged and therefore, the application deserves to be dismissed.
9. After hearing learned counsel for the petitioner at length and going through the material available on record, this Court is of the considered opinion that this petition deserves to be allowed to the extent indicated herein below.
10. Section 33 of the Indian Stamps Act enjoins a duty to impound the instrument insufficiently stamped. After impounding the document there are two avenues open to the Court; firstly to admit the document in evidence subject to the exceptions upon payment of the duty chargeable thereon and penalty, if same is made by the party producing the document. Thereafter, secondly if the duty and the penalty is paid, the court is required to send the authenticated copy of the document to the Collector of Stamps together with the certificate in writing stating the amount of duty and the penalty levied in respect of the instrument and also to send such amount to the Collector of Stamps as is provided by sub- section (1) of Section 35 of the Stamps Act. If the party producing the document fails to pay the duty and the penalty, the Court must send the original to the Collector of Stamps, who shall take necessary steps for realizing the stamp duty and the penalty. If the party producing the document wants adjudication by the Collector of Stamps, then the Court must follow the procedure prescribed in section 33 & 38(2) of the 5 W.P. No.3835/2015 Stamps Act.
11. In the present case, the learned trial court has rejected the application without leaving option of adjudication by Collector of Stamps. The order impugned is, therefore, unsustainable in the eyes of law and accordingly, it is hereby set aside. Learned trial court is directed to proceed in the matter in accordance with law and refer the matter to the Collector of Stamps for adjudication. The trial court shall forward necessary papers to the Collector of Stamps along with copy of this order within a period of 15 days from the date of receipt of the order and give a date to the parties for appearing before the Collector of Stamps. The Collector of Stamps shall consider and decide the matter within a period of two (2) months from the date of receipt of papers and the copy of the order. He shall also afford opportunity of hearing to the parties concerned. The trial court after obtaining the decision of the Collector of Stamps shall thereafter proceed to decide the suit in accordance with law.
12. In the result, this writ petition stands allowed to the extend indicated herein above. There shall be no order as to costs.
(S.A. Dharmadhikari) JUDGE (08/05/2017) Durgekar*