Delhi High Court
Mrs. Rasheeda Siddiqui vs Mr. Mustafa Aleem Siddiqui & Anr. on 5 September, 2011
Author: V.K. Jain
Bench: V.K. Jain
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 02.09.2011
Judgment Pronounced on: 05.09.2011
+ CS(OS) 667/2008
Mrs. Rasheeda Siddiqui ..... Plaintiff
Through: Mr. Y.P.Narula, Sr. Advocate
with Mr. Aniruddha Choudhary, Advocate
versus
Mr. Mustafa Aleem Siddiqui & Anr. ..... Defendants
Through: Mr. Shams Khawaja, Advocate
for D-1
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN
1.Whether Reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the Reporter or not? Yes.
3. Whether the judgment should be reported Yes. in Digest?
V.K. JAIN, J IA No. 7516/2010
1. This is a suit for possession, perpetual injunction and mandatory injunction. The case of the plaintiff is that she is the owner of house No. B-1, Khasra No. 234, Bhaskar Compound, Abul Fazal Enclave, Part-I, Jamia Nagar, New CS(OS)No. 667/2008 Page 1 of 9 Delhi-110025 and that the aforesaid property was unauthorizedly and illegally occupied by the defendants during her absence when she had gone to USA to reside with her daughter. The plaintiff has accordingly sought possession of the suit property from the defendants. She has also sought an injunction restraining the defendants from interfering with her possession. She has also claimed mesne profits from the defendants @ Rs.30,000/- p.m.
2. The case of the plaintiff in respect of ownership of the suit property is based on documents such as General Power of Attorney, Agreement to Sell and Purchase, Will, Possession Letter, receipt etc. all dated 2.6.2004. The Agreement to Sell and Purchase purports to have been executed by Shri Shahzad Mirza in favour of the plaintiff, for a total sale consideration of Rs.5 lakh. It is stated in the agreement that possession of property No. B-1 comprised in Khasra No. 234, Bhaskar Compound, Abul Fazal Enclave, Part-I, Jamia Nagar, New Delhi-110025 has been given to the purchaser Smt. Rasheeda Afaq Siddiqi. Since, the plaintiff claims to have obtained possession from the erstwhile owner of the suit property under an Agreement to CS(OS)No. 667/2008 Page 2 of 9 Sell executed in her favour, the provisions of Section 53A of The Transfer of Property Act, 1882 come into application.
3. Vide IA No. 7516/2010, purporting to have been filed under Section 151 Code of Civil Procedure, the plaintiff has sought direction to pay the deficient stamp duty on the Agreement to Sell and Purchase dated 2.6.2004, which has been filed in original.
4. The application has been opposed by defendant No.1, who has stated that there is no justification for admitting the insufficiently stamped document in evidence. He has also taken a preliminary objection that the plaintiff has invoked Section 151 of Code of Civil Procedure, which is a procedural provision whereas the provisions of The Indian Stamp Act, 1899 are substantive provisions of law.
5. Section 33 of the Indian Stamp Act, 1899, to the extent it is relevant, provides that every person having by law or by consent of parties, authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that CS(OS)No. 667/2008 Page 3 of 9 such instrument is not duly stamped, impound the same. Section 35 of the Act, to the extent it is relevant, provides that an instrument which is chargeable with duty shall not be admitted in evidence unless it is duly stamped, but, such an instrument shall be admitted in evidence, on payment of the requisite 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 the proper duty/deficient duty. Section 38 of the Act provides that where the person impounding an instrument under Section 33 has the authority to receive evidence and he admits such instrument in evidence on payment of penalty specified in Section 35, he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector, or to such person which the Collector may appoint in his behalf. In other cases, the person impounding the instrument is required to send it in original to the Collector. Section 39 of the Act provides that when a copy of the instrument is sent to the Collector under Section 38, sub-section(1), he may, if thinks fit, refund any CS(OS)No. 667/2008 Page 4 of 9 portion of the penalty in excess of rupees five which has been paid in respect of such instrument.
It would thus be seen that whenever an instrument which is not stamped or is inadequately stamped is filed in a Court (which by law as authority to receive evidence), it is required to be impounded, but the Court has to admit such a document in evidence if the person relying upon the document pays the deficient stamp duty along with a penalty which is ten times the amount of deficient stamp duty. The Court after payment of the deficient stamp duty along with the prescribed penalty is required to forward a copy of the instrument along with the requisite certificate indicating the amount of duty as well as the penalty, to the Collector who may, in his discretion, remit such portion of the penalty as he may deem appropriate. In such a case, the original document need not be sent to the Collector. If however, the deficient stamp duty along with requisite penalty is not paid, the Court is required to send the document, in original, to the Collector.
6. In Chilakuri Gangulappa v. Revenue Divisional Officer, Madanpalle & Anr. (2001) 4 SSC 197 the appellant CS(OS)No. 667/2008 Page 5 of 9 filed a Civil Suit basing his claim on an agreement dated 26.6.1986. When the agreement was produced in the Court, it was found to be insufficiently stamped and accordingly it was impounded and forwarded to the delegatee of the Collector for taking further action in the matter. The delegatee of the Collector was of the view that these agreement required additional stamp duty of Rs.3895/- and imposed penalty of Rs.38950/- being ten times the deficient stamp duty. The order of the delegatee of the Collector was challenged before the Senior Civil Judge, who held that the appeal was not maintainable. A Revision filed before the High Court was also dismissed. When the matter reached the Supreme Court by way of Special Appeal, Supreme Court was of the view that it was Section 33 of the Indian Stamp Act, which was attracted to such an instrument. Noticing that the Court has the power to admit the document in evidence, if the party producing the same would pay the stamp duty together with a penalty amounting to ten times the deficient stamp duty, Supreme Court observed that when the Court chooses to admit the document on compliance with the condition of payment of deficient stamp duty along with prescribed penalty, then CS(OS)No. 667/2008 Page 6 of 9 the Court needs to forward only a copy of the document to the Collector, together with the amount collected from the party for taking adjudicatory steps and in case the party refuses to pay the amount of the stamp duty and penalty, the Court has no other option except to impound the document and forward the same to the Collector. Supreme Court was of the view that the trial Court should have asked the appellant as to whether he would remit the deficient portion of the stamp duty together with a penalty amounting to ten times of the deficient stamp duty and if the appellant agreed to do so it had to proceed with the trial after admitting the documents in evidence and it had in the meanwhile to forward a copy of the document to the Collector for the purpose of adjudicating on the question of deficiency of stamp duty as provided in Section 40(1)(b) of the Act. It was further observed that only if the appellant was unwilling to remit the amount, the Court was to forward the original of the document itself to the Collector for the purpose of adjudicating on the question of deficiency of the stamp duty.
7. The agreement dated 2.6.2004 being a contract for CS(OS)No. 667/2008 Page 7 of 9 transfer of immovable property in the nature of part performance, Article 23A of Schedule 1A, applicable to Delhi, is attracted and 90% of the duty payable on a conveyance is required to be paid on this document. The plaintiff therefore, is directed to pay balance of 90% of the duty which was payable on a conveyance, at the time this agreement purports to have been executed, along with ten times the amount of deficient stamp duty as penalty, within four weeks from the date of this order. On payment of the deficient stamp duty along with penalty in terms of this order, the Registry shall send the requisite certificate under Section 38(1) of The Indian Stamp Act, 1899 to the Collector, detailing the amount of deficient stamp duty as well as the amount of penalty along with the amount deposited by the plaintiff. The original document in that case need not be sent to the Collector. If however, the plaintiff fails to deposit the deficient stamp duty and penalty in terms of this order, the Registry shall send the original agreement to sell and purchase dated 2.6.2004 to the Collector in terms of Section 38(2) of The Indian Stamp Act, 1899.
CS(OS)No. 667/2008 Page 8 of 9
8. As regards the objection that the plaintiff has invoked Section 151 of Code of Civil Procedure, I find no merit in the objection since the application of the plaintiff can always be treated as an application under Section 35 of The Indian Stamp Act and it is treated as such.
The application stands disposed of in terms of this order.
CS(OS) No.667/2008
The matter be listed before the Joint Registrar on 24th October, 2011 for admission/denial of documents and before the Court on 12th March, 2012 for framing of issues.
(V.K. JAIN) JUDGE SEPTEMBER 05, 2011 vn CS(OS)No. 667/2008 Page 9 of 9