Madhya Pradesh High Court
Sneh Farms & Agro Products Ltd. Thru: ... vs Pankaj Agrawal & Anr. on 19 June, 2014
R.P. No.604/2013
19.06.2014
Shri VK Jain, learned counsel for the petitioner.
Shri Anurag Baijal, learned counsel for the respondent
No.1.
Heard.
This order shall dispose of the Review Petition filed by the petitioner against the judgment / order passed on 08.10.2013 by the learned Single Judge of this Court in W.P. No.5625/2012.
2. The brief background for filing of the present Review Petition is that in a suit filed by the respondent, a document was filed by the respondent alongwith the plaint, which was an agreement dated 15.04.2011. It was based upon the aforesaid agreement, the substantive relief was asked for by the respondent. The relevant averment made in the plaint based upon the agreement to sale relied upon by the respondent/plaintiff were as under:-
1. That, the plaintiff entered into an agreement to sale with the defendant No.1 for the purchase of property bearing Survey No.100/2/2/2 admeasuring 0.060 hectare situated at Gram Badiya Kima, Tehsil & District - Indore (MP) for total consideration of Rs.7,00,000/- (Rupees Seven Lacs only) and the plaintiff had paid the total consideration to the defendant No.1 on the assurance that the registered sale deed with be executed in due course. After receipt of the said amount, the defendant No.1 had also handed over the possession to the plaintiff and the aforesaid property is in exclusive possession of the plaintiff since April 2011.
The boundaries of the said plot are as follows:-
"Towards East - Other land Towards West - Public road Towards North - Other land Towards South - Other land"
On the execution of the said plot, the defendant no.1 had also handed over a copy of the registered sale deed to the plaintiff alongwith Rin-Pustika Part-II & I, a map of area and Town & Country Planning permission. The said documents are annexed and collectively marked as Annexure-A to this plaint. The copy of the Agreement to Sale dated 15.4.2011 is annexed and marked as Annexure-B to this plaint. It is respectfully submitted that in the agreement, which was executed between the plaintiff and the defendant no.1, it is clearly mentioned that the approach road passes from the nearby colony known as "NRI Sakar City" which connects to the main road, it is pertinent to mention here that in the agreement it has been agreed by the defendant no.1 and the plaintiff that in further whenever the road and development of the colony will carry out then the expenses for the same will be borne by the plaintiff only.
3. Soon thereafter, the petitioner filed an application for impounding of the agreement to sale under section 33 of the Indian Stamp Act based upon the averment made in section 33 of the Indian Stamp Act as produced hereinafter, the petitioner asked for impounding of the agreement in question, however, the trial Court dismissed the said application and it was thereafter the case came up before this Court by way of filing of Writ Petition as aforesaid. Section 33 of the Indian Stamp Act reproduced here 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 to 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 law in force in India when such instrument was executed or first executed:
Provided that........
(1) (2) 5. Agreement or memorandum of an agreement:- (a)............. ................. (b)............. ................. (c)............. ................. (d)............ .................
(e) If relating to sale of immovable property:-
(I) When Possession of the The same duty as a conveyance property is delivered or is agreed (No.22) on the market value of the to be delivered without executing property. the conveyance.
(ii) When possession of the One percent of the total property is not given. consideration of the property setforth in the agreement or memorandum of agreement.
4. In the Writ Petition, the petitioner assailed the order of the trial Court and submitted :-
3. Learned counsel for the petitioners submit that impugned order is illegal and deserves to be set aside. It is submitted that learned court below has dismissed the application on the ground that at the time of tendering the document in evidence, this aspect of the case can be examined. Learned counsel submits that findings recorded by the learned court below is against the section 33 of the Act.
Learned counsel placed reliance on a decision in the matter of Smt. Dilwati Devi Vs. Commissioner, Varanasi, AIR 2000 Allahabad 344 wherein Allahabad High Court has held that 'public officer in charge before whom any instrument chargeable with duty is produced or comes in performance of his functions, he may impound the same if it appears to him that such instrument is not duly stamped. It was further observed by Allahabad High Court that it is not necessary to produce document in evidence before hi. Learned counsel further placed reliance on a decision in the matter of Government of Andhra Pradesh Vs. Smt. P. Laxmi Devi, AIR 2008 SC 1640 wherein, Hon'ble Apes Court has held 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 not equity in a tax. If the words used in a taxing statute are clear, one cannot try to find out the intention and the object of the statute. Hon'ble Apex Court further held 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. 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. Reliance is also placed on a decision in the matter of Avinash Kumar Chauhan Vs. Vijay Krishna Mishra, (2009) 2 SCC 532 wherein, Hon'ble the Apex Court observed that Chapter III of the Act provides for adjudication with regard to proper stamps, whereas Chapter IV deals with instruments not duly stamped. Section 33 casts a duty upon every person who has authority to received evidence and every person in charge of a public office before whom the instrument is produced, it is appears to him that the same is not duly stamped, to impound the same. Sub-section (2) of Section 33 of the Act lays down the procedure for undertaking the process of impounding. On the strength of aforesaid position of law learned counsel submits that the petition be allowed.
5. The averment made in the Writ Petition was assailed by the respondent. The learned Single Judge vide impugned order passed the following order while disposing of the Writ Petition:-
8. From perusal of impugned order also, it is evident that learned Court below has observed that it is not clear whether respondent No.1 intends to tender the document in evidence or not. In the facts and circumstances of the case petition filed by the petitioners is disposed of with a short directing that before proceeding further learned trial Court shall ascertain whether respondent No.1 intends to tender the document in evidence or not. If respondent No.1 submits that he does not want to tender the document in evidence, then the application filed by the petitioners shall be dismissed treating the document filed by the respondent No.1as an instrument, which is un-executed. It respondent No.1 shows his willingness to tender the document in evidence, then learned Court below shall decide the application filed by the petitioners and shall examine whether instrument is properly stamped or not.
9. With the aforesaid observation, petition stands disposed of. C.c. as per rules.
6. It has been submitted by the learned counsel for the petitioner that the aforesaid order suffered from an error apparent and is not sustainable in the light of section 33 of the Indian Stamp Act as aforesaid.
7. It has been submitted that once an agreement, which was not properly stamped, came up before the Court alongwith the plaint, it was the duty of the Court to have impounded the same, having not done so trial Court violated the provision of section 33 of the Indian Stamp Act. It is submitted that procedure followed by the learned Single Judge is also not sustainable in law.
8. We have heard the learned counsel for the parties and perused the provision contained under section 33 of the Indian Stamp Act as aforesaid.
9. Having perused the order of the learned Single Judge where the kind of option having given to the first respondent to tender the document evidence or not is not tenable in law.
10. Consequently, we are of the considered view that the matter requires reconsideration. Consequently, we set aside the impugned order and restore the Writ Petition and direct the Writ Petition to be listed for hearing afresh before the appropriate Bench in accordance with law.
11. Accordingly, the Review Petition stands allowed.
C.c. as per rules.
(Shantanu Kemkar) (M.C. Garg)
Judge Judge
Kratika/