Madhya Pradesh High Court
Mahendra Kumar vs Smt.Meera Bhargava on 19 June, 2014
1
W.P.No.1631/2014 (Mahendra Kumar Vs. Smt. Meera Bhargava & antr)
19062014
Shri Sumant Mishra, Advocate for the petitioner.
Shri A.V.Bhardwaj, Advocate for the respondent No.1.
Shri Praveen Newaskar, Deputy Government Advocate for
the respondent No.2/State.
Heard.
This petition under Article 227 of the Constitution of India by the
defendant/petitioner is filed challenging the legality, validity and
propriety of the impugned order dated 20/02/2014 passed in civil suit
No.8A/2012 by Civil Judge, ClassII, Bhitarwar, District Gwalior.
Facts necessary for disposal of this petition are to the effect that
the respondent/plaintiff has filed a suit for specific performance of an agreement to sale in relation to an immovable property against the defendant/petitioner. In paragraph 7 of the plaint, it has been averred that the defendant/petitioner in token of part of consideration amount received had acknowledged the same in his own handwriting in the diary maintained by the plaintiff/respondent duly signed by him in presence of the witnesses. The aforesaid plea is in fact basis for the suit as regards receipt of part of consideration amount by the petitioner/ defendant. Based whereupon the instant suit for specific performance of an agreement to sale of the immovable property against the defendant/petitioner has been filed.
The petitioner has filed an application under section 35 of the Indian Stamp Act, 1899 (hereinafter referred to as 'the Act') on the premises that the aforesaid document reflecting receipt of amount mentioned therein by the petitioner/defendant is in fact a receipt within 2 W.P.No.1631/2014 (Mahendra Kumar Vs. Smt. Meera Bhargava & antr) the meaning of section 2(23) of the Act and the same having not been stamped in accordance with the provisions of the Act under article 1 of Schedule I of the Act, the same is not admissible in evidence. The application was resisted by the respondent/plaintiff asserting that the said application has not been filed bona fidely but only with a view to delay the proceedings.
Trial Court while dealing with the aforesaid application by the impugned order has justified its order on the premises that endorsement made in the diary maintained by the plaintiff/respondent is in fact for the remembrance of the plaintiff and, therefore, it is not a receipt within the meaning of section 2(23) of the Act and no stamp duty was required to be affixed, resultantly the application was rejected.
Having gone through the impugned order and the submissions made by counsel for the parties, this Court is of the opinion that in fact justification for dismissal of the application, i.e., endorsement/writing in the diary was for remembrance of the plaintiff in fact renders counter to the whole premises of the suit and particularly paragraph 7 of the plaint wherein same document is treated as an acknowledgement/receipt by the defendant/petitioner having duly signed the same towards payment of part of consideration of the agreement to sell of an immovable property by the plaintiff/respondent in the presence of the witnesses. As such, the trial Court's order suffers from patent perversity. Upon reading of the entire plaint and paragraph 7 thereof in particular, it is evident that the document in question is being used by the plaintiff/respondent as a receipt as regards payment of part of consideration of the agreement to sell of an immovable property.
3W.P.No.1631/2014 (Mahendra Kumar Vs. Smt. Meera Bhargava & antr) Hence, the document does fall within the scope of 'receipt' as defined in section 2(23) of the Act. Hence, its admissibility will be subject to 3+proper affixation of stamp duty thereupon in terms of article 1 of Schedule I of the Act. The decision of a Division Bench of this Court reported in (2010) 2 MPLJ 321, Ikbal Ahmed Vs. Girdharilal is to the aforesaid effect.
In view of the aforesaid, the impugned order dated 20/02/2014 passed in civil suit No.8A/2012 by Civil Judge, ClassII, Bhitarwar, District Gwalior is set aside. The trial Court is ordered to proceed accordingly. No order as to cost.
Certified copy as per rule.
(Rohit Arya) Judge b/