Rajasthan High Court - Jaipur
Sanjeev Bhardwaj vs Yogeshwar Swaroop Bhatnagar on 4 September, 2019
Bench: Mohammad Rafiq, Narendra Singh Dhaddha
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writ Petition No.15760/2015
Sanjeev Bhardwaj S/o Sh. Tilak Raj, by Caste Brahmin,
aged about 45 years, R/o Near Satsang Bhawan, Baran,
Tehsil & District Baran (Raj.)
----Petitioner-Defendant
Versus
Yogeshwar Swaroop Bhatnagar S/o Sh. Purushottam
Bhatnagar, by caste Bhatnagar, R/o Baran, Tehsil &
District Baran (Raj.)
----Plaintiff-Respondent
Connected With D.B. Civil Writ Petition No.6437/2013 Shri Prahlad S/o Shri Hemchand By Caste Khatik, Gram Chaksu, District Jaipur Raj.
----Petitioner Versus
1. Additional District And Sessions Judge No.2, Jaipur District Performa-Respondent
2. Gopal S/o Shri Rambaksh By Caste Raigar, by caste Raigar, aged about 73 years, resident of Bish Hamirpura, Tehsil Lalsot, district Dausa Raj.
3. Shri Kanhailal S/o Shri Moti, by Caste Raigar, aged about 63 years, resident of Jaisinghpura, Tehsil Chaksu, at Present Resident of Jaisinghpura Khaur, Tehsil and District Jaipur (Since deceased) :
3/1 Smt. Shanti Devi wife of late Shri Kanhailal 3/2 Raju son of late Shri Kanhailal.
3/3 Pappu lal son of late Shri Kanhailal 3/4 Lala son of late Shri Kanhailal 3/1 to 3/4 are resident of Jaisinghpura Khaur, Tehsil and District Jaipur.
3/5 Smt. Ramkanya wife of Shri Ramnarayan daughter of late Shri Kanhaiyalal, resident of Gram Nayala, Tehsil Jamwaramgarh, District Jaipur.
----Respondents
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For Petitioner(s) : Mr. Manoj Bhardwaj, Mr. Piyush
Sharma,
For Respondent(s) : Mr. M.C. Jain & Mr. Sudhir Yadav.
Advocates appeared as
Interveners:
Mr. R.K. Agarwal, Senior Advocate,
Mr. Ajeet Bhandari with Mr.
Jitendra Mishra, Mr. Manish
Sharma with Mr. Lakshay Pareek,
Mr. Anoop Pareek, Mr. Sudesh
Bansal, Mr. Anil Mehta, Additional
Advocate General, Mr. N.L.
Agarwal, Mr. S.C. Mittal, Mr. P.S.
Sirohi, Mr. Saransh Saini, Mr.
Raunak Dixit, Mr. Ankit Jain, Mr.
Pradeep Choudhary, Mr. Amit
Jindal, Mr. B.R. Rana, Mr. T.L.
Pandey, Mr. Govind Singh
Somawat, Dr. Ram Kishan
Sharma, Mr. Bhrigu Sharma, Mr.
Nirmal Kumar Goyal
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ
HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA
Judgment
04/09/2019
(PER HON'BLE MOHAMMAD RAFIQ, J.)
REPORTABLE
These matters have been laid before the division bench upon a reference made by a learned Single Judge of this Court vide order dated 22.02.2015 passed in S.B. Civil Writ Petition No.15760/2015, on the following questions of law:
"(i) Whether the judgments rendered by two different Single Bench of this Court in the case of Smt. Indu vs. Narsingh Das & Ors., 2013(5) WLC (Raj.) 615 and Prembai vs. Khurshid Bano & Ors., 2014(3) WLC (Raj.) 221 relying upon the case of Avinash Kumar Chauhan vs. Vijay Krishna Mishra, 2009 (2) SCC 532, lay a correct law without taking note of judgment rendered by a Constitution Bench of Supreme Court in Javer Chand & Ors. vs. Pukhraj Surana, AIR 1961 SC 1655.
(ii) Whether judgment rendered by another Single Bench of this Court in the case of Lrs of Deepchand vs. Mahaveer Chand & Anr., 2015 (2) WLN 106, and the view expressed by Full Bench of Madhya Pradesh High (Downloaded on 06/06/2021 at 07:20:53 PM) (3 of 30) [CWs-15760/15 & 6437/13] Court in the case of Balkrishna Bihari Lal vs. Board of Revenue M.P. and Others, AIR 1970 MP 74, has to prevail?
(iii) Whether on production of unstamped document, Court is duty bound to determine the stamp fee along with penalty, as per Section 35(1) of the Act or to impound the same under Section 33 of the Act and send the same to the Collector for determination of stamp duty and penalty in order to make the document admissible?"
Subsequently, another Single Bench in S.B. Civil Writ Petition No.6437/2013 also vide order dated 6.2.2018 directed that that writ petition be also tagged and listed along with S.B. Civil Writ Petition No.15760/2015 for adjudication before the Larger Bench.
Before proceeding to examine the matter on merits, a brief reference to the facts of the cases would be in order.
The first writ petition being S.B. Civil Writ Petition No.15760/2015, has been filed by petitioner-defendant Sanjeev Bhardwaj, in which the respondent-landlord Yogeshwar Swaroop Bhatnagar filed a petition before the Rent Tribunal for eviction of the petitioner-tenant Sanjeev Bharadwaj. He along with the petition submitted an affidavit along with eight documents on record. The respondent-landlord submitted an application before the Rent Tribunal stating that the petitioner provided only copies of five documents, whereas three documents, which are mentioned in the affidavits as Exhibits-A/4, A/7 and A/8, have not been provided to him. It was also contended in the application that petitioner in his affidavit exhibited agreement to sell as Ex.A3, which could not be exhibited as it was neither properly stamped, nor was it duly registered. Petitioner in reply to the aforesaid application stated that agreement to sell (Ex.A3) was merely produced in evidence for collateral purposes, under the proviso to Section 49 of the Registration Act, 1908. The Rent (Downloaded on 06/06/2021 at 07:20:53 PM) (4 of 30) [CWs-15760/15 & 6437/13] Tribunal, Baran by its order dated 16.9.2015 accepted the application of the respondent-landlord and held that marking of the agreement to sell as Ex.A/3 was not proper and therefore ordered to cancel the same. It is this order which has been challenged by the petitioner-tenant.
The second writ petition being S.B. Civil Writ Petition No.6437/2013 has been filed by Prahlad, who purchased certain land through registered sale deed from one Kanhaiyalal, who was owner of 1/20th part of the property, which was yet not partitioned and suit for partition was pending. The plaintiff- respondent filed a suit for specific performance and for injunction, with the averments that land in dispute, measuring 5 bighas, comprising of khasra nos.696, 698, 699, 702 and 703 in Village Jaisinghpura, Tehsil Chaksu, was in the khatedari of father of defendant-Kanhaiyalal. After demise of his father, his mother Mst. Gaura became the khatedar-tenant of the land. Out of the entire land measuring five bighas, land measuring one bigha and five biswas was sold to one Panchu son of Kalyan. A compromise took place between the parties before the Revenue Appellate Authority on 9.7.1997 in the terms that the remaining land of 1/4 bigha (5 biswas) would be transferred to Gaura. However, Gaura died on 29.12.1999 and after her demise, the land devolved upon Kanhaiyalal and his three sisters. Since all the sisters relinquished their share in favour of Kanhaiyalal, he became the owner of the entire four bighas of land. During the pendency of the suit, the plaintiff-respondent wanted to exhibit agreement to sale dated 3.3.2000. The defendant objected to the same on the premise that agreement was neither registered, nor properly stamped and therefore, it could not be admitted in evidence. The learned (Downloaded on 06/06/2021 at 07:20:53 PM) (5 of 30) [CWs-15760/15 & 6437/13] Additional District Judge by his order dated 19.3.2013 dismissed the application, which is under challenge in the writ petition.
We have heard learned counsel for the parties as also learned counsel, who have appeared in response to general notice issued to the members of the Bar.
As would be seen from para 13 of the reference order, learned Single Judge appears to have doubted the correctness of the Two-Judge Bench judgement of the Supreme Court in Avinash Kumar Chauhan, supra, since it has been decided without noticing the Constitution Bench judgement of the Supreme Court in Javer Chand & Ors., supra. The learned Single Judge on that basis proceeded to conclude that there is a conflict of opinion between different judgements rendered by Single Benches of this Court in Hajari vs. Ratan Lal-2009 (1) DNJ 396, Smt. Indu, supra and Prembai, supra, all of which have been decided relying on judgement of the Supreme Court in Avinash Kumar Chauhan, supra, without taking note of the judgement of the Constitution Bench of the Supreme Court in Javer Chand & Ors., supra.
Let us begin by discussing the Constitution Bench judgement of the Supreme Court in Javer Chand & Ors., supra. The question of law that the Supreme Court was called upon to decide in that case was whether or not two hundis sued upon were inadmissible in evidence? The trial Judge held that "they were" and in that view of the matter, decreed the suit in full with costs and future interest. This Court allowed the defendant's regular first appeal against that judgement and dismissed the suit of the plaintiff. The argument before the Supreme Court was that hundis were inadmissible in evidence because they had not been stamped according to the Stamp Law. Issue no.2 framed before the trial (Downloaded on 06/06/2021 at 07:20:53 PM) (6 of 30) [CWs-15760/15 & 6437/13] court was to the effect whether the two hundis, the basis of the suit, being unstamped, were inadmissible in evidence? The onus of proving this issue lay on the defendant, who was examined as DW5. His other witnesses, DWs. 1, 2 and 4 were examined and cross-examined with reference to the terms of the hundis and as to who was the author of the hundis. These hundis during the course of the recording of the evidence on behalf of the parties were referred to as Ex.P1 and Ex.P2. The trial court decided the issue no.2 in the terms that plaintiff having paid the penalty, the two documents in suit having been exhibited and numbered under the signatures of the Presiding Officer of court, and the documents having been introduced and also referred to and read in evidence by the defendant's counsel, the provisions of Section 36 of the Stamp Act, which are mandatory, at once come into play and the disputed documents cannot be rejected. The Supreme Court while interpreting Section 36 of the Stamp Act has held in para 4 as under:
"4.xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx The suit was accordingly decreed with costs, as stated above. On appeal by the defendant to the High Court, the High Court also found that the hundis were marked as Exs. P1 and P2, with the endorsement "Admitted in evidence" and signed by the Judge. The High Court also noticed the fact that when the hundis were executed in December, 1946, the Marwar Stamp Act of 1914 was in force and ss. 9 and 11 of the Marwar Stamp Act, 1914, authorised the Court to realise the full stamp duty and penalty in case of unstamped instruments produced in evidence. Section 9 further provided that on the payment of proper stamp duty, and the required penalty, if any, the document shall be admissible in evidence. It was also noticed that when the suit was filed in January, 1949, stamp duty and penalty were paid in respect of the (Downloaded on 06/06/2021 at 07:20:53 PM) (7 of 30) [CWs-15760/15 & 6437/13] hundis, acting upon the law, namely, the Marwar Stamp Act, 1914. The High Court also pointed out that the documents appear to have been Admitted in evidence because the Trial court lost sight of the fact that in 1947 a new Stamp Act had come into force in the former State of Marwar, amending the Marwar Stamp Act of 1914. The "new law was, in terms, similar to the Indian Stamp Act. The High Court further pointed out that after the coming into effect of the Marwar Stamp Act, 1947 the hundis in this case could not be admitted in evidence, in view of the provisions of S.35, proviso (a) of the Act, even on payment of duty and penalty. With reference to the provisions of S.36 of the Stamp Act., the High Court held that the plaintiffs could not take advantage of the provisions of that section because, in its opinion, the admission of the two hundis 'was a pure mistake'. Relying upon a previous decision of the Rajasthan High Court in Ratan Lal v. Dan Das-I.L.R. [1953] Raj. 833, the High Court held that as the admission of the documents was pure mistake, the High Court, on appeal, could go behind the orders of the Trial Court and correct the mistake made by that Court. In our opinion, the High Court misdirected itself, in its view of the provisions of S.36 of the Stamp Act. Section 36 is in these terms:-
"Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped."
That section is categorical in its terms that when a document has once been admitted in evidence, such admission cannot be called in question at any stage of the suit or the proceeding on the ground that the instrument had not been duly stamped. The only exception recognised by the section is the class of cases contemplated by S.61, which is not material to the present controversy. Section 36 does not admit of other exceptions. Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the Court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Section 35 is in the nature of a penal provision and has far-reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The (Downloaded on 06/06/2021 at 07:20:53 PM) (8 of 30) [CWs-15760/15 & 6437/13] Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. The record in this case discloses the fact that the hundis were marked as Exs. P.1 and P.2 and bore the endorsement 'admitted in evidence' under the signature of the Court. It is not, therefore, one of those cases where a document has been inadvertently admitted, without the Court applying its mind to the question of its admissibility. Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross- examination of their witnesses, S.36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction."
The Supreme Court in Javer Chand, supra thus held the matter stands concluded qua the party that does not raise the objection as to the admissibility of a document at the earliest opportunity, but the State can always in view of Section 61 of the Stamp Act (Section 71 of the Rajasthan Stamp Act) raise the demand of stamp duty or deficient stamp duty.
Avinash Kumar Chauhan, supra was a case in which plaintiff- appellant filed appeal against the judgement of the Single Bench of Chattisgarh High Court, dismissing the writ petition filed under Article 227 of the Constitution of India against the orders passed in the civil suit. The respondent, who was a member of the Scheduled Tribe, intended to transfer a house and land for a sale consideration of Rs.2,70,000/-. Possession of the said property had also been delivered to the plaintiff. Since the respondent- defendant was a member of Scheduled Tribe, the permission of the Collector was required to be obtained for the purpose of effecting the transfer of land, which was applied for, but declined. (Downloaded on 06/06/2021 at 07:20:53 PM)
(9 of 30) [CWs-15760/15 & 6437/13] The plaintiff-appellant filed a suit for recovery of Rs.2,70,000/-. In order to prove his case, he produced the agreement to sell which was sought to be registered. The trial court by invoking Section 35(a) of the Stamp Act impounded the same. The plaintiff was required to pay a sum of Rs.20,250. Agreement to sell was executed on a stamp paper of Rs.60/-. The deficient amount of stamp duty was thus Rs.20,190, together with 10 times penalty of the same amount. The plaintiff paid a sum of Rs.20,850 and was required to pay remaining amount of Rs.1,81,050. The Supreme Court held that Section 33 of the Stamp Act, 1899 casts a duty upon every person who has authority to receive evidence and every person incharge of a public office before whom the instrument is produced, if it appears to him that the same is not duly stamped, to impound the same as per the procedure given in sub-section (2) of Section 33. Section 35 of the Stamp Act provides that an instrument shall be inadmissible in evidence if the same is not duly stamped in the terms given thereunder. Section 36 provides that where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61 thereof, be called in question at any stage of same suit or proceeding on the ground that the instrument has not been duly stamped. The Supreme Court held that the Parliament has, in Section 35 advisedly used the words "for any purpose whatsoever". Thus, the purpose for which a document is sought to be admitted in evidence or the extent thereof, would not be a relevant factor for not invoking the aforementioned provisions. It was held that although ordinarily an agreement to sell would not be subject to payment of stamp duty which is payable on a sale deed, but having regard to the purpose and object it seeks to (Downloaded on 06/06/2021 at 07:20:53 PM) (10 of 30) [CWs-15760/15 & 6437/13] achieve, the legislature thought it necessary to levy stamp duty on an instrument, whereby possession has been transferred. It was not disputed that the possession of the property has been delivered to the plaintiff-appellant. Although the agreement to sell was not registered, but registration of the document has nothing to do with the validity thereof as provided for under the provisions of the Indian Registration Act, 1908. 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 Supreme Court in Avinash Kumar Chauhan, supra also noticed Section 49 of the Registration Act, but held that Section 35 of the Stamp Act, rules out applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted in evidence "for any purpose whatsoever." The Supreme Court relying on the judgement of the Privy Council in Ram Rattan v. Parmanand-AIR 1946 PC 51, held that all purposes for which the document is sought to be brought in evidence are excluded, it failed to see any reason as to how the document would be admissible for collateral purposes.
Subsequently, a Two-Judge bench judgement of the Supreme Court in S.Kaladevi vs V.R.Somasundaram & Ors.-(2010) 5 SCC 401, has clarified the position as to the scope within which the proviso to Section 49 of the Registration Act would operate. The Supreme Court noted that Section 17 of the Registration Act 1908 is a disabling section. The documents defined in clauses (a) to (e) therein require registration compulsorily. Accordingly, sale of immovable property of the value of Rs. 100/- and more requires compulsory registration. Part X of the 1908 Act deals with the (Downloaded on 06/06/2021 at 07:20:53 PM) (11 of 30) [CWs-15760/15 & 6437/13] effects of registration and non- registration. Section 49 gives teeth to Section 17 by providing effect of non-registration of documents required to be registered. It provides that no document required by Section 17 or by any provision of the Transfer of Property Act, 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. Proviso to Section 49 however limits the exception to that restriction and stipulates that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 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, or as evidence of any collateral transaction not required to be effected by registered instrument. The law with regard to scope of applicability of proviso to Section 49 was succinctly stated by the Supreme Court in para 12 of the report in the following terms:
"12. The main provision in Section 49 provides that any document which is required to be registered, if not registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. Proviso, however, would show that an unregistered document affecting immovable property and required by 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. By virtue of proviso, therefore, an unregistered sale deed of an immovable property of the value of Rs. 100/- and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. When an unregistered sale deed is tendered in (Downloaded on 06/06/2021 at 07:20:53 PM) (12 of 30) [CWs-15760/15 & 6437/13] evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of 1908 Act."
It is thus trite that exceptions carve out in the proviso to Section 49, shall apply to evidence of a contract in a suit for specific performance by way of an unregistered document affecting immovable property and required by the Registration Act or the Transfer of Property Act to be registered, or as evidence of any collateral transaction, not required to be affected by registered document. The exception to receive a document in evidence for collateral purpose is available only for unregistered document, but not for an unstamped document. In view of the discussion, there was no apparent conflict between the view taken by constitution bench judgement in Javer Chand, supra and Avinash Kumar Chauhan.
What is the exact meaning of the phraseology "collateral purpose" in proviso to Section 49 of the Registration Act, 1908, has been a matter of debate for long. There is enough case law available on this issue for the guidance of the Courts. We shall presently refer to some of them.
The Supreme Court in Sita Ram Bhama vs. Ramavtar Bhama-(2018) 15 SCC 130, held that in a suit for partition, an unregistered documents can be relied upon for collateral purpose with the severance of title, nature of possession of various shares and not for a primary purpose i.e. division of joint properties by metes and bounds. The Supreme Court in Roshan Singh vs. Jile Singh-(2018) 14 SCC 814, held that a partition may be affected (Downloaded on 06/06/2021 at 07:20:53 PM) (13 of 30) [CWs-15760/15 & 6437/13] orally, but subsequently, if it is reduced in the form of document, that document purports itself to effect a division and embodies terms of bargain, it will be necessary to register it. Proviso to Section 49 allows documents which would otherwise be excluded, to be used as an evidence of any collateral transaction not required to be effected by a registered instrument.
The Allahabad High Court in Ratan Lal & Ors. Vs. Harisankar & Ors.-AIR 1980 Allahabad 180 while discussing the meaning of term "collateral purpose" held that since the appellant wanted to extinguish the right of the respondent with the help of the unregistered tenancy, the same was not a collateral purpose. Para 4 of the report are opposite to quote:-
"The second contention was that the partition deed, even if it was not registered could certainly be looked into for a collateral purpose, but the collateral purpose has a limited scope and meaning. It cannot be used for the purpose of saying that the deed created or declared or assigned or limited or extinguished a right to immovable property ..........term `collateral purpose' would not permit the party to establish any of these acts from the deed."
In the case of Bajaj Auto Ltd. vs. Behari Lal Kohli-AIR 1989 SC 1806, the Supreme Court held that if a document is inadmissible for non-registration, all its terms are inadmissible including the one dealing with landlord's permission to his tenant to sub-let and therefore none of the terms of the lease can be admitted in evidence and further that to use a document for the purpose of proving an important clause in the lease is not using it as a collateral purpose.
In Rai Chand Jain Vs. Chandra Kanta Khosla-AIR 1991 SC 747 also similar view was taken by the Supreme Court as would (Downloaded on 06/06/2021 at 07:20:53 PM) (14 of 30) [CWs-15760/15 & 6437/13] be evident from the following exceptions made in paragraph 10 of the judgement, which reads as under : -
"10.......the lease deed Ex. P1 dated 19th May, 1978 executed both by the appellant and the respondent i.e. the landlady and the tenant, Rai Chand Jain, though unregistered can be considered for collateral purposes and as such the findings of the Appellate Authority to the effect that the said deed cannot be used for collateral purposes namely to show that the purpose was to lease out the demised premises for residential purposes of the tenant only is not at all legally correct. It is well settled that unregistered lease executed by both the parties can be looked into for collateral purposes. In the instant case the purpose of the lease is evident from the deed itself which is as follows: "The lessor hereby demises House No. 382, Sector 30-A, Chandigarh, to lessee for residential purposes only". This clearly evinces that the property in question was let out to the tenant for his residence only...."
In the case of Rana Vidya Bhushan Singh Vs. Ratiram-1969 (1) UJ 86 (SC), the following law was laid down:
"A document required by law to be registered, if unregistered, is inadmissible as evidence of a transaction affecting immovable property, but it may be admitted as evidence of collateral facts, or for any collateral purpose, that is for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. As stated by Mulla in his Indian Registration Act, 7th En., at p. 189 :
"The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu & Kashmir; the former Chief Court of Oudh; the Judicial Commissioner's Court of Peshawar, Ajmer and Himachal Pradesh and the Supreme Court have held that a document which requires registration under Section 17 and which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of the possession of the person who holds under it."
The Supreme Court upon consideration of some of the above referred to judgements, on interpretation of term "collateral purpose in the proviso to Section 49 of the Registration Act, 1908", has in K.B. Saha & Sons (P) Ltd. vs. Development (Downloaded on 06/06/2021 at 07:20:53 PM) (15 of 30) [CWs-15760/15 & 6437/13] Consultant Ltd.-(2008) 8 SCC 564 at para 34 of the report, culled out following principles:-
"1. A document required to be registered, if unregistered 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 immovable 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.
6. The document required to be registered if unregistered can be admitted in evidence as evidence by a contract in a suit for specific performance"
Analysis of the law made above commends to hold that collateral purpose cannot be used as a camouflage to circumvent the statutory prohibition under Section 49 of the Registration Act, 1908 of the inadmissibility of the instrument relating to immovable property unless proviso thereto was not actually attracted. The phraseology "collateral purpose" in the context of the proviso to Section 49 of the Registration Act has to be construed as connoting a purpose unrelated to the purpose of the execution of the instrument, which otherwise requires registration. It is the real nature of the transaction and apparent tenor of the instrument which will determine whether it is mandatorily required to be registered and if so how much is stamp duty payable. Nature of the instrument can be determined only from the language it (Downloaded on 06/06/2021 at 07:20:53 PM) (16 of 30) [CWs-15760/15 & 6437/13] employs and the purpose for which it is executed. If the purpose, for which an instrument is executed requires it to be registered, is central or primary to it, it can never be held to be a "collateral purpose", to justify its admissibility by recourse to proviso to Section 49 of the Registration Act. Therefore, the bald argument of "collateral purpose", cannot be allowed to circumvent the very substantive ground based on a statutory prohibition regarding inadmissibility of the document at a trial.
We shall now deal with the first question formulated by the learned Single Judge in the reference order doubting correctness of the judgement of Single Benches of this Court in (i) Smt. Indu, supra and (ii) Smt. Prembai, supra on the premise that they have been decided without taking note of the Constitution Bench judgement of Supreme Court in Javer Chand & Ors., supra.
The judgement of Single Bench in Smt. Indu, arose out of a suit for specific performance. The dispute was with regard to an agreement to sell, both unstamped and unregistered, which was accepted in evidence by the trial court for collateral purposes. During the pendency of the suit, the defendant filed an application before the trial court under Order 12 Rule 3 CPC read with Sections 17 and 49 of the Registration Act and Sections 33 and 35 of the Indian Stamps Act. In the application, it was mentioned that document dated 11.5.1969 written on plain paper was neither properly stamped nor registered and therefore the same is inadmissible in evidence. The trial court allowed the said application and declared the document aforementioned filed by the plaintiff-respondent to be inadmissible in evidence. The plaintiff-respondent preferred writ petition before this Court, but (Downloaded on 06/06/2021 at 07:20:53 PM) (17 of 30) [CWs-15760/15 & 6437/13] the same was dismissed, though keeping it open for the plaintiff- respondent, if he so desired, to make a prayer to the trial court to consider the document for collateral purpose. The plaintiff- respondent pursuant to that liberty granted by this Court, moved such application before the trial court with the prayer that the document may be admitted in evidence for collateral purposes for establishing the nature of possession over the disputed plot. The defendant by filing the reply to the application contested the same. The trial court allowed the application filed by the plaintiff- respondent and admitted the document in evidence for collateral purposes. It was this order, which was challenged by the defendant in the writ petition before this Court on the ground that the learned trial court has wrongly allowed the application ignoring the judgement of the Supreme Court in Avinash Kumar Chauhan, supra. The learned Single Judge of this Court relying on the judgement in Avinash Kumar Chauhan, supra held that the document being unstamped and unregistered, in view of Section 35 of the Registration Act, which bars such document for evidence "for any purpose whatsoever", was not admissible in evidence even for collateral purposes. It may be noted that in Indu's case, the question with regard to payment of deficient stamp duty and penalty was not raised and therefore this question was not at all considered. The only issue that was raised was whether an unstamped and unregistered document can be taken into consideration even for collateral purposes. It was held that the proviso to Section 49 of the Registration Act carves out an exception to Section 17 of the Act, in that an unregistered agreement to sell to be read in evidence in a suit for specific (Downloaded on 06/06/2021 at 07:20:53 PM) (18 of 30) [CWs-15760/15 & 6437/13] performance. But if it is unstamped or inadequately stamped, Section 35 of the Stamp Act, 1895, which is in pari materia with Section 39 of the Rajasthan Stamp Act, gets attracted, which bars admissibility of the same for any purpose whatsoever. The learned Single Judge in taking that view has relied on the judgement of the Supreme court in Avinash Kumar Chauhan, supra, which has discussed the complete law on interpretation of Section 35 of the Stamp Act. The Constitution Bench judgement of the Supreme Court in Javer Chand, supra was however decided on applicability of Section 36 of the Stamp Act, which provides that "when an instrument has been admitted in evidence, such admission shall not except provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground the instrument has not been duly stamped." There is thus no conflict of opinion between these two Supreme Court judgements. The judgement of learned Single Judge in Indu (Smt.), supra, in our view, has been correctly decided.
This now brings us to another Single Bench judgement in Prem Bai, supra referred to in the first question in the reference order. The defendant in that case had filed writ petition against the order of the trial court rejecting her application under Order 8 Rule 1(3) read with Section 151 CPC in a suit for recovery of arrears of rent. This application was filed for placing on record the sale deed executed by predecessor-in-title of the plaintiff-non-petitioner. The sale deed was sought to be produced after closer of the evidence of the respondent-plaintiff. When the matter was fixed for evidence of the defendant-petitioner, the respondents/plaintiffs resisted the application stating that the sale deed was neither (Downloaded on 06/06/2021 at 07:20:53 PM) (19 of 30) [CWs-15760/15 & 6437/13] executed on sufficient stamp duty nor the same was registered and therefore, was inadmissible in evidence. It was argued on behalf of the defendant-petitioner that "the unregistered sale deed was sought to be put in evidence, not for the purpose of enforcement of contract, but only for collateral purpose." Learned Single Judge considered the provisions of Section 35 of the Stamp Act, which provides that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer for any purpose whatsoever. The purpose for which the document was sought to be admitted in evidence therefore would be relevant factor. Execution of deed of a conveyance in respect of premises for which suit has been instituted for eviction and recovery of arrears of rent, indisputably, is an instrument executed and by reason of such an instrument, not only the entire amount of consideration was paid, but possession of the property was also transferred and therefore, on account of statutory interdiction, no transfer at all is permissible in the light of the law delivered by the Hon'ble Supreme Court in the case of Pandey Orason vs. Ram Chander Sahu-1991 Supp (2) SCC 77 and Amrendra Pratap Singh-(2004) 10 SCC 65. The learned Single Judge, therefore relying on the judgement of the Privy Council in Ram Tattan vs. Parmanand-AIR 1946 PC 51 held that provisions of Section 35 of the Act of 1899, rules out applicability of provision of Section 49 as it stipulates in unambiguous terms that unstamped/not fully stamped document of this nature, shall not be admitted in evidence for any purpose whatsoever. Even this (Downloaded on 06/06/2021 at 07:20:53 PM) (20 of 30) [CWs-15760/15 & 6437/13] judgement of learned Single Judge has been correctly decided because an unregistered document cannot be confused with an unstamped or insufficiently stamped document. If a document, which is chargeable to stamp duty and is not stamped, Section 35 of the Stamp Act, which is analogous to Section 39 of the Rajasthan Stamp Act, would get attracted.
The first question referred by learned Single Judge in the order of reference is thus answered accordingly.
This now brings us to second question as to whether judgement rendered by another Single Bench of this Court in Lrs. of Deepchand, supra and the view expressed by Full Bench judgement of Madhya Pradesh High Court in Balkrishna Bihari Lal, supra shall prevail?
In Lrs of Deep Chand, supra, plaintiff approached this Court against the order of trial court, which held that the memorandum of partition, which was unregistered and unstamped, could not be accepted in evidence because it does not bear signatures of other two brothers. The trial court however held that it could be utilised for the collateral purpose under Section 49 of the Registration Act. So far as the stamp duty is concerned, this Court taking note of the fact that since the plaintiffs have already offered to pay the stamp duty, if applicable and held that on their doing so, the document would become admissible in evidence. It was held that the trial court committed a grave error in, on the one hand, holding that the document could be admitted in evidence for collateral purposes, but also simultaneously directing that the same cannot be exhibited. In those facts, the learned Single Judge of this Court has observed as under:
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(21 of 30) [CWs-15760/15 & 6437/13] "In that view of the matter, the document being totally unstamped, the same cannot be exhibited in terms of Section 35 of the Act. However, once, the finding is recorded that a document is unstamped or insufficiently stamped the duty of the trial court is to act under the provisions of Section 33 of the Act, whereby it can either itself determine the deficient stamp duty and penalty and / or impound the document and sent the same to the Collector for determination of proper stamp duty and on payment of stamp duty and penalty the document become admissible in evidence. However, apparently, the said further procedure has not been adopted by the trial court.
In that view of the matter, the writ petition is disposed of with the direction to the trial court to adopt the procedure as prescribed in Section 33 of the Act regarding the document dated 28.2.1980 and thereafter, after hearing the parties redecide the aspect regarding admissibility of the document." The Court is duly bound under Section 33 of the Stamp Act, which is analogous to Section 37 of the Rajasthan Stamp Act, to either itself determine the deficient stamp duty and penalty and/or impound the document and send the same to the Collector for determination of proper stamp duty and on payment of stamp duty and penalty, the document become admissible in evidence.
The Full Bench decision of Madhya Pradesh High Court in Balkrishna Bihari Lal vs. Board of Revenue, M.P. & Ors.-AIR 1970 SC 74 was delivered in a case where the Board of Revenue made a reference to the High Court under Section 57(1)(a) of the Stamp Act. The judgement of the Board of Revenue was challenged before the High Court under Article 226 of the Constitution of India. The division bench of the High Court held that important questions of law arose and the Board had unreasonably declined to make a reference under Section 57(1) of the Stamp Act. The order of the Board of Revenue was set aside and it was directed to state the case and to refer to High Court, the six questions referred in para 3 of the judgement. The first question was whether, after admitting Exhibit P-5 in evidence, the Civil Judge (Downloaded on 06/06/2021 at 07:20:53 PM) (22 of 30) [CWs-15760/15 & 6437/13] was competent to send it to the Collector under Section 38(2) of the Stamp Act. The Full Bench held that when an unstamped/insufficiently stamped document is tendered in evidence, the Court has power under Section 35 read with Section 38(1) of the Act to admit it in evidence on payment of chargeable stamp duty together with penalty and send its authentic copy to the Collector with a certificate stating the amount of stamp duty and penalty and send such amount. In all other cases, the Court shall impound the exhibit and by recourse to Section 38(2), sent it in original to the Collector, who shall then follow the procedure as specified in Sections 39 and 40 of the Act.
Both the judgments, i.e., the Single Bench judgement in LRs of Deep Chand, supra, and Full Bench judgement of M.P. High Court in Balkrishna Bihari Lal, supra, shall prevail as the course of action they have required the Courts to follow is in conformity with the relevant provisions of the Stamp Act.
Adverting now to the third question whether the Court is bound to follow the procedure provided in Sections 33 and 35 of the Stamp Act, 1899, we shall presently deal with the scheme of the legislation with reference to provisions of the Rajasthan Stamp Act, 1998. Section 39 of the Rajasthan Stamp Act is corresponding to Section 35 of the Indian Stamp Act, 1899, which mandates that no instrument chargeable with duty under the Act, shall be admitted in evidence for any purpose by any person having by law or consent of parties, authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped. Significantly, neither Section 37 of the Rajasthan Stamp Act (Section 33 of the Stamp Act, 1899), nor Section 39 of the (Downloaded on 06/06/2021 at 07:20:53 PM) (23 of 30) [CWs-15760/15 & 6437/13] Rajasthan Stamp Act (Section 35 of the Stamp Act, 1899) contain a proviso like Section 49 of the Registration Act enabling the Court to use an instrument for collateral purpose, which though is chargeable to stamp duty, but is unstamped or insufficiently stamped. Language of both these provisions is peremptory in nature and mandates that the Court cannot use such document for any purpose whatsoever. The Stamp Act casts a duty upon every Court i.e. a person having by law, authority to receive evidence, to examine the instrument in order to ascertain whether it is duly stamped and if the Court comes to the conclusion that the instrument is not duly stamped, it has to mandatorily impound the same and deal with it as provided under the Act. The mandatory nature of the Act is evident from the use of the word "shall' both in Section 37 and 39 of the Rajasthan Stamp Act, which are analogous to Section 33 and 35 of the Stamps Act, 1899.
The Supreme Court in Government of A.P. vs. P. Laxmi Devi- (2008) 4 SCC 720 held that it is incumbent upon the Court to impound the document unstamped or insufficient stamped. Para 16 of the report, which is relevant, is reproduced hereinunder:
"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 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 (Downloaded on 06/06/2021 at 07:20:53 PM) (24 of 30) [CWs-15760/15 & 6437/13] 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."
Another significant question of law which arises for consideration is whether on impounding the instrument, the court should on its own collect the deficient stamp duty and penalty as envisaged in Section 39 of the Rajasthan Stamp Act or after impounding such instrument, send the same to the Collector for the needful. Clause (a) of proviso to Section 39 stipulates that the impounded instrument shall, subject to all just exceptions, be admitted in evidence on payment of- (i) the duty with which the same is chargeable, or in the case of an instrument insufficiently stamped, of the amount required to make up such duty and (ii) a penalty at the rate of two percent of the amount of the deficient duty per month or part thereof for the period during which the instrument remained insufficiently stamped or twenty five percent of the deficient stamp duty, whichever is higher, but such penalty shall not exceed to two times of the deficient stamp duty. Clause
(e) of the proviso to Section 39 further clarifies it by providing that nothing herein contained shall prevent the admission of a copy of any instrument or of an oral account of the contents of any instrument, if the stamp duty or a deficient portion of the stamp duty and penalty as specified in clause (a) is paid. In contrast, Section 37(1) of the Rajasthan Stamp Act provides that if a document is produced before a person or a public office having authority in law to receive evidence, which in his opinion is chargeable to stamp duty and is not duly stamped, shall impound the same. Section 37(4) provides that such person shall forthwith make a reference in that matter to the Collector. Sub-section (5) of Section 37 then provides that Collector may suo-moto or on (Downloaded on 06/06/2021 at 07:20:53 PM) (25 of 30) [CWs-15760/15 & 6437/13] such reference, call for the original instrument for ascertaining whether it is duly stamped and the instrument so produced shall be deemed to have been produced or come before him in the performance of his functions and in case the original instrument is not produced within the period specified by the Collector, he may require the payment of the proper duty or the amount required to make up the same together with the penalty under section 44. Sub-section (1) of Section 42 of the Rajasthan Stamp Act provides that when the person having authority of law or consent of the parties to receive evidence, impounds an instrument under Section 37 and admits such instrument in evidence upon payment of a penalty as provided by Section 39 or of duty as provided by Section 41, shall sent 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 sent such amount to the Collector, or to such person as he appoints in this behalf. Sub-section (2) of Section 42 further provides that in every other case, the person so impounding an instrument shall send it in original to the Collector.
The important aspect which is required to be considered also at this juncture is whether the Court impounding the document has any discretion to charge lesser penalty than what has been provided for by Section 39 of the Rajasthan Stamp Act. In this connection, reference may be made to Section 44 of the Rajasthan Stamp Act, which provides for power of the Collector to stamp the impounded instrument. Section 44(1)(b) provides that when the Collector receives an instrument sent to him under sub-section (2) of Section 42, chargeable with a duty under this Act, he shall, if in his opinion, such instrument is duly stamped or is not chargeable (Downloaded on 06/06/2021 at 07:20:53 PM) (26 of 30) [CWs-15760/15 & 6437/13] with duty, certify so by endorsement on such document or if he is of opinion that such instrument is chargeable with duty and is not duly stamped, he shall require the payment of proper duty or the amount required to make up the same, together with a penalty at the rate of two percent of the amount of the deficient duty per month or part thereof for the period during which the instrument remained unstamped or insufficiently stamped or twenty five percent of the deficient stamp duty, whichever is higher, but not exceeding two times the deficient stamp duty. Sub-section (2) of Section 44 then provides that every certificate under clause (a) of sub-section (1), shall for the purpose of this Act, be conclusive evidence of matters stated therein. Sub-section (3) of Section 44 further provides that where an instrument has been sent to the Collector under sub-section (2) of section 42, the Collector shall, when he has dealt with it as provided by this section, return it to the impounding officer. But the Collector under Section 43 of the Act has been conferred with a discretion to refund whole of the penalty paid in respect of an instrument, which has been impounded and sent to him under sub-section (1) of Section 42 only because it has been written in contravention of section 13 or section 14. No such discretion, however, has been conferred on the Court.
The Supreme Court in a recent judgement in Gangappa & Anr. vs. Fakkirappa-(2019) 3 SCC 788 in the scope of Section 34 of the Karnataka Stamp Act 1957 (analogous to Section 39 of the Rajasthan Stamp Act) was considering the question whether the trial court while admitting an insufficiently stamp document, could have exercised its discretion in imposing penalty 2 times of deficient amount of stamp duty or it was obligatory for the trial (Downloaded on 06/06/2021 at 07:20:53 PM) (27 of 30) [CWs-15760/15 & 6437/13] court to impose the penalty at the rate of 10 times. Analysing the provision of Section 38 of the Karnataka Stamp Act (which is analogous to Section 43 of the Rajasthan Stamp Act), the Supreme Court held that the Deputy Commissioner under that provision is empowered to refund any portion of the penalty in excess of five rupees, which has been paid in respect of such instrument. Since sub-section (1) of Section 38 uses the expression "if he thinks fit", he also has the discretion to impose penalty of 10 times in the facts of the particular case. Affirming the view of division bench of the Karnataka High Court in earlier judgement of Digambar Warty and Others vs. District Registrar, Bangalore Urban District and another, ILR 2013 KAR 2099 that there is no discretion vested with the authority impounding the document in the matter of collecting duty under Section 33 and 34, the Supreme Court held that the word "shall" used in those provisions has rightly been interpreted by the High Court. Analogous provisions to these Sections are Sections 37 and 39 of the Rajasthan Stamp Act, which also uses the word "shall", leaving no discretion to the Court to impose a penalty other than the one prescribed thereunder.
It shall be in this connection apposite to refer to the judgement of Supreme Court in Peteti Subba Rao vs. Anumala S. Narendra-(2002) 10 SCC 427 wherein it was held that the Court can admit such instrument only on payment of deficit stamp duty with 10 times of the penalty suggested as a way out. It was further held that when a person is not willing or cannot afford to pay the same, the only available course open for the Court to adopt is the one envisaged in Section 38 of the Stamp Act (analogous to Section 42 of the Rajasthan Stamp Act). The (Downloaded on 06/06/2021 at 07:20:53 PM) (28 of 30) [CWs-15760/15 & 6437/13] following discussion made by the Supreme Court in para 6 of the report is worth quoting:
"6.xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx We find some force in the said plea. In a case where the party fails to pay the penalty suggested by the court the document impounded has to be sent to the Collector for the purpose of taking further steps in respect of that document as provided in Section 40 of the Act. The Collector has the power to require the person concerned to pay the proper duty together with a penalty amount which the Collector has to fix in consideration of all aspects involved. The restriction imposed on the Collector in imposing the penalty amount is that under no circumstances the penalty amount shall go beyond ten times the duty or the deficient portion thereof. That is the farthest limit which meant only in very extreme situations the penalty need be imposed up to that limit. It is unnecessary for us to say that the Collector is not required by law to impose the maximum rate of penalty as a matter of course whenever an impounded document is sent to him. He has to take into account various aspects including the financial position of the person concerned."
The Supreme in Chila Kuri Gangulappa vs. Revenue Divisional Officer-(2001) 4 SCC 197 also similarly held that if the appellant agrees to remit the amount of stamp duty and the penalty, the Court can proceed with the trial after admitting the document in evidence. If, however, he is unwilling to do so, the Court shall forward original of the document itself to the Collector for the purpose of adjudicating the question of deficiency of the stamp duty. The following observation in para 13 of the report, are worth quoting:
"13.In the present case the trial court should have asked the appellant, if it finds that the instrument is insufficiently stamped, as to whether he would remit the deficient portion of the stamp duty together with a penalty amounting to ten times the deficiency. If the appellant agrees to remit the said amount the court has to proceed with the trial after admitting the document in evidence. In the meanwhile, the court has to forward a copy of the document to the Collector for the purpose of adjudicating on the question of deficiency of the stamp duty as provided in Section 40(1)(b) of the Act. Only if the appellant is unwilling to remit the amount the court is to forward the original of the document itself to the (Downloaded on 06/06/2021 at 07:20:53 PM) (29 of 30) [CWs-15760/15 & 6437/13] Collector for the purpose of adjudicating on the question of deficiency of the stamp duty. The penalty of ten times indicated therein is the upper limit and the Collector shall take into account all factors concerned in deciding as to what should be the proper amount of penalty to be imposed."
In the light of the discussion aforesaid, the third question whether on production of unstamped document, the Court is duty bound to determine the stamp fee along with penalty, as per Section 35(1) of the Act or to impound the same under Section 33 of the Act and send the same to the Collector for determination of stamp duty and penalty in order to make the document admissible, is answered in the terms that if any instrument is presented before the Court, which is not duly stamped or insufficiently stamped, the Court is duty bound to impound the same and; (i) if the party who produces such instrument in evidence is willing to pay the stamp duty or deficit stamp duty together with amount of penalty, to determine the same and upon deposit of the amount, so determined, with the Court, it shall be open for the Court to admit the instrument in evidence, or; (ii) in the event, however, the party which produces such instrument does not agree or is unable to remit the amount of stamp duty/deficit stamp duty and the penalty, the Court shall send the impounded instrument to Collector for determination of stamp duty and penalty, which shall be, only upon production/receipt of the certificate/endorsement of deposit thereof, received in evidence.
We place on record our sense of appreciation for the learned members of the Bar, who have in response to the general notice appeared and provided able assistance.
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(30 of 30) [CWs-15760/15 & 6437/13] All the referred questions having been answered, the writ petitions be listed before the appropriate bench for decision on merits.
Office to place a copy of this order in connected matter. (NARENDRA SINGH DHADDHA),J (MOHAMMAD RAFIQ),J RAVI SHARMA /2-3 (Downloaded on 06/06/2021 at 07:20:53 PM) Powered by TCPDF (www.tcpdf.org)