Delhi District Court
Manmohan Lal vs . V.D.Wadhwa on 21 August, 2013
1
Manmohan Lal Vs. V.D.Wadhwa
C.S. No.477/10
21.08.2013
ORDER
Matter taken up for orders on the objection raised by ld. counsel for defendant during evidence of plaintiff w.r.t. the admissibility of Rent Deed on ground of it being not duly stamped as per provisions of Indian Stamp Act and not registered as per Section 17 of Registration Act. 2 The Rent Deed in question is shown to have been executed in 1994 and the provisions of Stamp Act required 1% more duty on the Rent Deed if it was for one year and it also required to be registered as per Section 17 of Registration Act.
3 Ld. counsel for plaintiff contended that it is only those documents which are for more than one year which require to be registered, while the present document was not for more than one year. 2 4 The document was perused.
5 Through and through, clause 11 thereof clearly showed that it had been agreed to be valid from 20.03.1994 till 20.03.1995 which rendered it to be operational for more than one year. 6 Further, plaintiff/PW1 also sought to tender in his evidence a CD as Ex.PW1/7. Ld. counsel for defendant objected to the admissibility thereof on the ground that the same had not been mentioned/referred to in the affidavit filed.
7 Ld. counsel for plaintiff did not dispute this but stated that was only due to omission and that the CD had been filed way back i.e. at the stage of replication itself before the framing of issues and in this respect, he referred to the ordersheet dated 28.09.2010. The said order was perused, but same did not specifically refer to any CD. There was only a general mention about 'some documents' filed alongwith list of documents.
38 However, at that stage, ld. counsel for plaintiff drew my attention to the contents of para 5 of the replication dated 28.09.2010 particularly in reply to the preliminary objections, wherein the CD and the transcript of the conversation were stated to have been annexed therewith. 9 However, it is to be considered that the CD and transcript were not mentioned in the affidavit at all. It is reasonable and desirable that the opposite party should not be taken by surprise; since if the affidavit which is tendered remained silent about documents, mere filing of a document alongwith pleadings cannot lead the opposite party to presume that it is going to be tendered at the evidence stage. In this respect, plaintiff could have sought permission to file a fresh affidavit mentioning the said documents that he wanted to exhibit therein, but no such permission has even been sought.
10 The present suit is for possession of tenanted premises and also for recovery of arrears of rent and mesne profits in respect of the 4 Second Floor of the property bearing No.14/32, East Punjabi Bagh, New Delhi hereinafter referred to as the suit property. 11 As per averments in the plaint, the defendant was inducted as a tenant w.e.f. 20.03.1994 vide a Rent Deed executed on 28.03.1994 at a monthly rent of Rs.2,000/ excluding electricity and water charges. While the monthly rent was increased from time to time on account of escalation in market value of the suit property, and on account of construction of additional rooms in the suit property, the last paid rent w.e.f. June 2005 onwards was stated to be Rs.4,500/; which according to plaintiff had been paid by the defendant till November 2006. Thereafter, defendant failed to tender the monthly rent right from 19.12.2006 till 19.05.2009 and a total sum of Rs.1,42,500/ had accumulated as arrears up for the said period. Tenancy was stated to be on monthly basis starting from 20th day of each English calendar month and expiring on the 19th day of succeeding English calendar month. Since plaintiff did not want to continue with the tenancy 5 of the defendant, he terminated the tenancy by the end of 19.05.2009 by a legal notice dated 18.04.2006 stated to have been duly served upon the defendant but never replied to the notice nor he vacated the suit property. Defendant is in illegal and unauthorized occupation w.e.f. 20.05.2006 and is alleged to be liable for damages for occupation w.e.f 20.05.2006 till handing over the vacant and peaceful possession of the suit property. 12 Defendant in turn has set up a different story altogether by way of defence. He alleges that plaintiff and defendant had been very close friends, as earlier both of them were property dealers and were on brotherly terms.
13 According to the defendant, plaintiff had been in some financial difficulty and for which, he had borrowed Rs.2 lacs and later on Rs.4 lacs, which the plaintiff had promised to repay with interest. 14 Plaintiff had allowed the defendant to stay in the suit property only on account of their friendly terms and not as a tenant. However, it is 6 only when defendant required gas connection and other facilities and he was requiring a No Objection from the plaintiff, that plaintiff suggested to execute rent deed in order to meet the requirements of the authorities. According to the defendant, plaintiff assured him that the rent deed would only be used for this purpose and not treated as a tenancy agreement. 15 Plaintiff further assured the defendant that he could keep the original rent agreement. According to the defendant, same has already been annexed with the written statement at page 23. Yet another rent deed was filed by the plaintiff also.
16 The defendant has termed the document in question, the rent agreement dated 28.03.1994 (filed by the plaintiff and marked as PX2) as a forged and fabricated document.
17 It is in this backdrop when this document was sought to be tendered and brought into evidence, the objection was raised in view of the provisions of Stamp Act and the Registration Act. Vide clauses 11 7 and 12 of the Rent Deed make it quite clear beyond any doubt that the rent deed was on an yearly basis.
18 As per the relevant provisions of Indian Stamp, Schedule 1, Article 35, lease deed which would include lease and any agreement to let or sublet, where the lease purports to be for a term of not less than one year and not more than 3 years, the stamp duty would be the same at Sr. No.23 for the amount i.e. the value of the average annual rent reserved. As per the document in question, the rent stated therein is Rs.2,000/ and accordingly, the annual value thereof would be Rs.24,000/. Going by the provisions of Article 15 relating to a bond, the stamp duty on the rent agreement would be much more than what has been affixed. The document is stamped only on a rupees two stamp paper, whereas going by the Schedule, the stamp duty to be affixed would have been at least @ Rs. 5 (for the first thousand + 2.50 X remaining 23,000/ = 82.50p = 77.50p). 19 Section 33 of the Stamp Act deals with the instruments, not 8 duly stamped as per which such a document is liable to be impounded. Section 35 provides that the instruments not duly stamped are inadmissible in evidence.
20 As per provision of Section 38 (2), the agreement being impounded shall be sent in original to the Collector/Registrar concerned and the Collector as per Section 40 of the Stamp Act shall require the payment of the proper stamp amount to make up the deficiency together with penalty equivalent to ten times the amount of the deficient portion thereof. The collector shall be directed that after having dealt with the documents as per the relevant provisions, he shall return it to the court, as per Section 40 (3) of the Stamp Act.
21 Section 17 of the Indian Registration Act, 1908, subsection 1 (as well clause (d)), requires that the lease deed document of immovable property from year to year basis or for any term exceeding one year is to be duly registered.
922 Thus, upholding the objection raised by ld. counsel for defendant, both the documents i.e. rent agreement as well as CD are not allowed to form part of the evidence, being inadmissible for the reasons stated above.
Objections disposed off accordingly.
Announced in open court (SUJATA KOHLI) today i.e. 21.08.2013 ADJ/WEST/DELHI