Madhya Pradesh High Court
Ramjan vs Mohammed Bashir Patel on 3 January, 2017
-1-
Writ Petition No.8438/2016
03/01/2017
Shri Sameer Athawale, learned counsel for the
petitioners.
Shri B. I. Mehta, learned Senior Counsel with Shri
Kapil Mahant, learned counsel for the respondent No.1.
The present petition has been filed against order dated 08/12/2016 passed by learned II Civil Judge, Class-I, Dewas in Civil Suit No.1-B/2015.
02- The facts of the case reveal that the petitioners are defendants in the civil Suit No.113/2013 (New No.1-B/2015) and the same has been filed by the respondent No.1 - plaintiff for recovery of Rs.49,65,360/-. The suit is based upon two agreements of sale dated 23/10/2012 and agreement dated 12/12/2012. The basis of suit is certainly the aforesaid two agreements.
03- A written statement was filed in the matter and the present petitioner has filed two interlocutory application on 15/09/2016. One was filed under Section 30 of the Code of Civil Procedure, 1908 raising an objection that two agreements dated 23/10/2012 and 12/12/2012 are not properly stamped and they should be impounded for payment of stamp duty. The another application was preferred under Section 17(1)(b) of the Indian Registration Act, 1908 on the ground that the prayer for refund of sale consideration is based upon the agreements dated 23/10/2012 and 12/12/2012 which are not registered and they should be declared as inadmissible in the evidence. The learned trial Court has dismissed both the applications. 04- Shri Mehta, learned Senior Counsel appearing on behalf of the respondent No.1 has vehemently argued before this Court that once the documents have been marked as exhibits, -2- the question of impounding the same does not arise. He has also stated that the trial Court was justified in dismissing both the applications and the scope of interference by this Court under Article 227 of the Constitution of India is quite limited. 05- Heard learned counsel for the parties and perused the record.
06- Section 33 of Indian Stamp Act, 1899 reads as under:-
33. Examination and impounding of instruments. --
(1) Every person having by law or 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 such instrument is not duly stamped, impound the same.
[Provided that nothing contained in this sub-section shall be deemed to authorise the Collector to impound any instrument which has not been executed but is brought ot him under Section 31 for determining the duty with which the instrument is chargeable or any instrument which he is authorised to endorse under section 32.] (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India when such instrument was executed or first executed.
Provided that-
(a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898);
(b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf.
(3) For the purposes of this section, in cases of doubt,--
(a) the State Government may determine what offices shall be deemd to be public offices; and
(b) the State Government may determine who shall be deemed to be persons in charge of public offices."
07- Thus, it is evident from the Section 33 that the trial Court was under a legal mandatory duty to impound the two insufficiently stamped agreements dated 23/10/2012 and 12/12/2012. The prayer in the application was only for -3- impounding the aforesaid documents.
08- This Court in the case of Sneh Farms & Agro Products Ltd. & Anr. Vs. Pankaj Agrawal & Anr. reported in 2015(1) MPHT 141 in paragraphs No.8 to 16 has held as under:-
"8. Section 33 categorically states that any person having authority to receive an evidence is duty bound to impound a document when it is insufficiently stamped.
9. The Allahabad High Court in the case of Smt. Dilawati Devi Vs. Commissioner, Varanasi (supra) in paragraph 2, has held as under :
"2. The submission of Mr. A. B. Singh does not appear to be sound so far as the Sections 33 and 47A are concerned. In as much as Section 33 does not require that the document is to be produced in evidence. A plain reading of Section 33 of the Indian Stamp Act shows that every person having by law or consent of parties authority to receive evidence, or every person in charge of a public office, except a police Officer, before whom any instrument, chargeable with duty is produced or comes in the performance of his functions, he may impound the same if it appears to him that such instrument is not duly stamped which in his opinion is required to be stamped. Thus, it is not clear that the document is not required to be produced in evidence but it is necessary who is capable of receiving the document in evidence or a person in charge of a public office before whom a document comes in discharge of his function of such office, he has the authority to impound such document."
10. The Allahabad High Court in the aforesaid case has held that by virtue of Section 33, when an instrument is produced chargeable with duty, has to be impounded by the Authority who receives such instrument.
11. In the case of Government of Andhra Pradesh Vs. Smt. P. Laxmi Devi (supra), the apex Court in paragraph 15, 16, 17 and 19 has held as under :
"15. Section 33(1) of the Stamp Act states : -
"Every person having by law or 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 in his functions shall, if it appears to him that such instrument is not duly stamped, impound the same."
16. A perusal of the said provision shows that when a document is produced (or comes in the performance of his functions) before a person who is authorized to receive evidence and a person who is in charge of a public office (except a police officer) before whom any instrument chargeable with duty is produced or comes in the performance of his functions, it is the duty of such person before whom the said instrument is produced to -4- impound the document if it is not duly stamped. The use of the word 'shall' in Section 33(1) shows that there is no discretion in the authority mentioned in Section 33(1) to impound a document or not to do so. In our opinion, the word 'shall' in Section 33(1) does not mean 'may' but means `shall'. In other words, it is mandatory to impound a document produced before him or which comes before him in the performance of his functions. Hence the view taken by the High Court that the document can be returned if the party does not want to get it stamped is not correct.
17. In our opinion, a registering officer under the Registration Act (in this case the Sub-Registrar) is certainly a person who is in charge of a public office. Section 33(3) applies only when there is some doubt whether a person holds a public office or not. In our opinion, there can be no doubt that a Sub-Registrar holds a public office. Hence, he cannot return such a document to the party once he finds that it is not properly stamped, and he must impound it.
19. It is well settled that stamp duty is a tax, and hardship is not relevant in construing taxing statutes which are to be construed strictly. As often said, there is no equity in a tax vide Commissioner of Income Tax vs. Firm Muar, AIR 1965 SC 1216. If the words used in a taxing statute are clear, one cannot try to find out the intention and the object of the statute. Hence the High Court fell in error in trying to go by the supposed object and intendment of the Stamp Act, and by seeking to find out the hardship which will be caused to a party by the impugned amendment of 1998."
12. The apex Court in the aforesaid case has held that stamp duty is a tax and hardship is not relevant in construing taxing statutes which are to be construed strictly. It was also held that in the light of Sec. 33(1), the moment a document is produced before an Authority and is insufficiently stamped, the same has to be mandatorily impounded.
13. The apex Court in the case of Avinash Kumar Chauhan Vs. Vijay Krishna Mishra (supra), in paragraphs 22 and 24 has held as under :
"22. We have noticed heretobefore that Section 33 of the Act casts a statutory obligation on all the authorities to impound a document. The court being an authority to receive a document in evidence is bound to give effect thereto. The unregistered deed of sale was an instrument which required payment of the stamp duty applicable to a deed of conveyance. Adequate stamp duty admittedly was not paid. The court, therefore, was empowered to pass an order in terms of Section 35 of the Act.
24. In this case, by reason of the statutory interdict, no transfer at all is permissible. Even transfer of possession is also not permissible. [See Pandey Oraon v. Ram Chander Sahu 1992 Supp (2) SCC 77 and Amrendra Pratap Singh v. Tej Bahadur Prajapati and Others (2004) 10 SCC 65] The Registration Act, 1908 provides for such a contingency in terms of the proviso appended to Section 49 thereof, which reads as under :--5-
'49. Effect of non-registration of documents required to be registered.- No document required by section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall--
(a) affect any immovable property comprised therein,
or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction
affecting such property or conferring such power, unless it has been registered:
Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument."
14. Keeping in view the aforesaid judgments, this Court is of the considered opinion that it is mandatory for an Authority to impound a document produced before him or which comes before him in the performance of his functions.
15. This Court has already dealt with the judgment delivered in the case of Avinash Kumar (supra) and the same has also been relied upon by the learned counsel for the respondent. Learned counsel for the respondent has placed reliance upon a judgment delivered in the case of Varghese (supra), which is of Kerala High Court and again upon a judgment delivered by the Kerala High Court in the case of Uthuppan Abraham (supra). The judgment relied upon by the learned counsel for the respondent are of no help to the respondent, as the issue in question has already been clarified by the apex Court in the case of Avinash Kumar (supra).
16. Resultantly, the Writ Petition is allowed. The impugned order dated 8/10/2013 is hereby set aside. The application preferred by the present petitioner u/S. 33 of the Indian Stamp Act, 1899 stands allowed and the learned trial Judge is directed to proceed further in accordance with law by impounding the documents and thereafter by sending it to the Collector of Stamps for adjudication. No order as to costs."
09- This Court in the aforesaid case has dealt with a similar controversy. It is an undisputed fact that the documents in question were certainly not stamped properly and therefore, in light of the aforesaid judgments and keeping in view the Section 33 of the Indian Stamp Act, 1899, the impugned order deserves to be set aside and is accordingly set aside. 10- So far as other interlocutory application is concerned which was filed by the present petitioners under Section 17(1)(b) -6- of the Indian Registration Act, 1908 raising an objection that documents are not the registered documents and as the documents involved an agreement to sale of a value of above Rs.100/-, they were certainly compulsorily registrable. 11- Learned counsel for the petitioner has placed reliance upon a judgment delivered by the Hon'ble Supreme Court in the case of K. B. Saha and Sons Pvt. Ltd. Vs. Development Consultant Ltd. reported in (2008) 8 SCC 564 and his contention is that documents in question are not being used for collateral purposes and in fact the main relief of refund is based upon the aforesaid documents. The Hon'ble Supreme Court in the aforesaid judgment in paragraphs No.34, 38, 42, 45 and 46 has held as under:-
"34. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that :
1. A document required to be registered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immoveable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.
38. Section 108(o) requires the lessee to use the property as a man of ordinary prudence would use his property and not to use it for a purpose different to that for which it was leased. It is true that under Section 108( o) of the Transfer of Property Act, "use of the property for the purpose other than that for which it was leased i.e. `Change of User' is not permitted". Therefore, we have to consider whether in the backdrop of the facts of this case, violation of Clause 9 of the lease agreement, even if it is held that it can be looked into for collateral purposes, would be "Change of User" or not. In other words, we have to find whether the expression "change of user" would cover a situation wherein the property is let out for a particular named officer and for none else and despite this condition, the same is given to some one else, or would it cover and be limited to the cases where property is leased out for a residential or non-residential purpose or for a particular business and despite such express conditions, the -7- property is used for the purpose other than the specified. We are of the view that letting out or leasing out the property for a particular named officer cannot be the "purpose" of letting. The purpose of letting out would be residential or non-residential or for a particular business etc.
42. Therefore, in the present case, we are of the view that although the premises was leased out exclusively for the named officer of the respondent, the fact that it was subsequently used for the residence of some other officer of the respondent would not constitute "change of user" so as to be hit by Section 108 (o) of the Transfer of Property Act.
45. Secondly, we are of the view that although the suit premises was leased out exclusively for the named officer of the respondent, the fact that the respondent sought to use it for some other officer would not constitute "Change of User" within the meaning of Section 108(o) of the Transfer of Property Act and, therefore, the respondent cannot be evicted for violation of the provisions of Section 108( o) of the Transfer of Property Act.
46. No other point was raised by the learned counsel for the appellant and accordingly, we do not find any merit in this appeal and the appeal is therefore dismissed."
12- In light of the aforesaid judgment delivered by the apex Court, the trial Court has certainly erred in law in dismissing both the applications for impounding of both the agreements and for inadmissibility of document for want of registration. 13- The impugned order passed by the trial Court deserves to be set aside and is accordingly set aside. The applications preferred by the present petitioners are allowed. 14- With the aforesaid, writ petition stands allowed.
Certified Copy as per rules.
(S. C. SHARMA) JUDGE Tej