Andhra Pradesh High Court - Amravati
Jatti Veera Venkata Satyam vs Bosukonda Chinnadevi on 19 October, 2022
THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI
Civil Revision Petition No.715 of 2020
ORDER:
This civil revision petition, under Article 227 of the Constitution of India, is filed aggrieved of the docket order, dated 10.01.2020, passed in O.S.No.695 of 2016 on the file of the Court of I Senior Civil Judge, Kakinada, whereby, the trial Court recalled the agreement of sale marked as exhibit A1 as it is insufficiently stamped.
2. Heard Sri C. Prakash Reddy, learned counsel for the revision petitioner/plaintiff, Sri N. Siva Reddy, learned counsel for respondent No.1 and Sri E.V.V.S. Ravi Kumar, learned counsel for respondents 2 & 3.
3. The facts, in brief, are that the plaintiff brought the suit against the defendants for specific performance of agreement of sale, dated 06.01.2016. The defendant No.1 filed written statement alleging that the suit agreement is not valid under law and it requires stamp duty and registration. Defendants 2 & 3 filed separate written statements contending that they are not aware of the alleged agreement, dated 06.01.2016, by the date of their purchase and that they are bona fide purchasers for value and 2 BSB, J C.R.P.No.715 of 2020 consideration, and therefore, the suit of the plaintiff is not maintainable and is liable to be dismissed.
4. When the suit stood posted for trial, the plaintiff filed his chief affidavit and documents were marked. When the suit is coming up for cross-examination of PW1, the defendants raised an objection for marking of the agreement of sale, dated 06.01.2016, as exhibit A1, as the same requires stamp duty and registration on the grounds that the alleged sale agreement was written on stamp paper worth about Rs.100/- and it was recited therein that possession was delivered.
5. Per contra, learned counsel for the plaintiff contend that though delivery of possession is recited in the agreement of sale, no actual delivery was effected, and therefore, no stamp duty is required to be paid. It was further contended that the recitals in the document are not conclusive but also other averments are to be looked into while determining payment of stamp duty and penalty.
6. The trial Court, by the order impugned, while upholding the objection raised by the defendants, even after marking of the document, demarked the agreement of sale, which is marked as exhibit A1.
7. Aggrieved the decision of the trial Court in demarking exhibit A1, the plaintiff filed this revision contending that the suit itself is 3 BSB, J C.R.P.No.715 of 2020 filed seeking specific performance of the agreement of sale, dated 06.01.2016, and to direct the defendants to deliver possession of the property and that it was categorically stated in his pleadings that no possession was delivered through the agreement though the document is styled as agreement with possession. The trial Court failed to appreciate the legal position that the document can be received in evidence and can be marked for collateral purpose even if stamp duty is not paid and the same is unregistered.
8. In a suit for specific performance of agreement of sale, when an agreement of sale apparently described handing over possession there under is sought to be marked, an objection was raised that it requires stamp duty under Article 47-A of Indian Stamp Act, 1899, ('the Act', for brevity) and it needs to be further registered as per Section 17 of the Registration Act, 1908. However, it is contended by the plaintiff that though there is a recital that possession was handed over, in fact, no possession was given thereunder and thus, the suit is filed for specific performance as well as recovery of possession and that the very case of the plaintiff is that no possession was delivered under the said document. But, on the other hand, it is contended that the contents of the document would determine the nature of the document for the purpose of collection of stamp duty, and therefore, the contention of the plaintiff is frivolous.
4
BSB, J C.R.P.No.715 of 2020
9. Insofar as non-registration of the agreement is concerned, though Section 17 of the Registration Act requires registration of an agreement of sale, by virtue of Section 49 of the Registration Act, even an unregistered agreement of sale can be received in evidence in a suit for specific performance. Therefore, whatever contention raised for making of the document on the ground of want of registration cannot be entertained. But that does not dispense with the need for payment of necessary stamp duty. Therefore, it is to be seen whether the agreement of sale, in the present case, requires stamp duty under Article 47-A of Schedule 1A of the Indian Stamp Act, 1899.
10. In this regard, learned counsel for the revision petitioner placed reliance on the decision of this Court in B. Bhaskar Reddy v. Bommireddy Pattabhi Rami Reddy (died) and others 1 , wherein, under similar circumstances, it was held that the pleadings, the nature of the document, the recitals and the surrounding circumstances must be taken into consideration for the purpose of explanation 1 to Article 47-A of Schedule 1A of the Indian Stamp Act in the interests of justice, and therefore, mere recitals in the agreement are not sufficient to decide whether the agreement of sale requires stamp duty under Article 47-A of the Act or not.
1 2010 (6) ALT 596 5 BSB, J C.R.P.No.715 of 2020
11. Learned counsel for the respondent placed reliance on the decision of the Supreme Court in Omprakash v. Laxminarayana and others2, wherein, on a specific question, whether admissibility of a document produced by the party would depend upon the recitals in the document or the plea of the adversary in the suit, it was categorically held that the recitals in the document alone should be looked into and therefore, they are the decisive of admissibility. In view of such finding of the Supreme Court, the decision relied on by the revision petitioner/plaintiff does not come to his aid. Therefore, the document in question, in the present case, requires stamp duty as per Article 47-A of Schedule 1A of the Act.
12. It is further contended that since the agreement of sale has already been marked without raising any objection, the document cannot be demarked for want of stamp duty in view of Section 36 of the Act. In support of the said contention, he placed reliance on a decision of the Supreme Court in Shyamal Kumar Roy v. Sushil Kumar Agarwal3, wherein it was held that if an instrument though under-stamped is admitted in evidence without the other side objecting to it, the right to reopen the issue is lost. Further reliance is placed on the decision of the Supreme Court in Javer Chand v. 2 (2014) 1 Supreme Court Cases 618 3 (2006) 11 Supreme Court Cases 331 6 BSB, J C.R.P.No.715 of 2020 Pukhraj Surana 4 on the same proposition which is referred and relied on by the Supreme Court in Shyamal Kumar Roy (3 supra).
13. On the other hand, learned counsel for the respondents placed reliance on the decisions of this Court, wherein, after considering the decision of the Supreme Court in Shyamal Kumar Roy (3 supra), proceeded to set aside the order of the trial Court by which a document which required stamp duty and registration was admitted in evidence. In this regard, the decisions relied on by the respondents are:
(i) Sure Ranga Murali Krishna Reddy v. Sure Yerri Vara Prasada Reddy5
(ii) Boggavarapu Narasimhulu v. Sriram Ramanaiah 6
(iii) Sheikh Qutubuddin and another v. Goli Vishwanatham 7 and
(iv) Aruna Sagar v. M/s. Shrushti Infrastructure Corporation and others8
14. In case of Sure Ranga Murali Krishna Reddy (5 supra), an unregistered partition deed was marked as exhibit B1, noting that it is a registered document and no finding was recorded with regard to admissibility of the document as to whether it is duly stamped or 4 AIR 1961 SC 1655 5 2018 (4) ALT 616 6 2014 (1) ALT 577 (S.B) 7 2014 (2) ALT 275 (S.B) 8 (2016) 2 ALD 403 7 BSB, J C.R.P.No.715 of 2020 not. Therefore, this Court observed that the trial Court did not apply its mind before the document is admitted in evidence and that if an objection as to deficiency of stamp duty is raised, the same has to be decided before proceeding further, and, as the trial Court failed to do so, and also marked an unregistered partition deed, as if it is a registered document, this Court set aside the said order passed in the interlocutory application filed to de-exhibit the said document, and directed the trial Court to afford an opportunity to both parties to advance arguments and decide its admissibility and proceed further in accordance with law.
15. In Boggavarapu Narasimhulu (6 supra), an unregistered agreement of sale was exhibited and the 2nd defendant filed an application for demarking the said document, in a suit filed for return of advance amount paid under the said agreement of sale. The High Court held that the trial Court arrived at an incorrect conclusion that if a document is exhibited without any objection, its admissibility cannot be questioned by the aggrieved party even though the matter relates to substantive law, such as the Registration Act, 1908 or the Indian Stamp Act, 1899. In this case also, the decision of the Supreme Court in Shyamal Kumar Roy (3 supra) has been referred.
8
BSB, J C.R.P.No.715 of 2020
16. Since the admissibility of a document marked on the ground of insufficiency of stamp duty cannot be received subsequently and demark a document in view of Section 36 of the Stamp Act, a party cannot be precluded from raising objection for receiving of a document on the ground of want of registration, just because the document was exhibited, since objection as to registration can be raised at any stage as held by the Supreme Court. In this case, the High Court made it clear that it did not go into the aspect as to either the requirement of registration or sufficiency of stamp duty in respect of exhibit A1 and these aspects are left open for consideration by the trial Court. It has given liberty to the defendants to raise an objection as to admissibility of exhibit A1 for want of registration, as required under Section 17 of the Registration Act.
17. In Sheikh Qutubuddin and another (7 supra), when a document is sought to be adduced in evidence, an objection was raised about its admissibility on the ground of insufficiency of stamp duty, and therefore, the trial Court exhibited the document subject to the objection raised. Since the objection is recorded, it does not amount to receiving the document in evidence so as to attract Section 36 of the Stamp Act. It is held by the High Court that marking document with objection has not reached its finality and 9 BSB, J C.R.P.No.715 of 2020 further that objection of stamp duty cannot be postponed to be decided at a later stage.
18. In Aruna Sagar (8 supra), it was held that stamp duty is required to be paid when a document is to be considered even for collateral purpose.
19. A perusal of the ratios in the aforesaid decisions indicate that while exercising the jurisdiction under Article 227 of the Constitution of India, the High Court has interfered with the order passed by the trial Courts while marking the document as against the requirement of law under substantive provisions. A distinction is to be made as to the objection on the ground of want of registration and objection raised for want of sufficiency of stamp duty required. In case of insufficiency of stamp duty, Section 36 of the Indian Stamp Act prohibits raising such objection subsequent to receipt of document in evidence, whereas, no such similar provision is found in the Registration Act. On the other hand, Section 49 of the Registration Act permits receipt of unregistered documents in evidence for certain purposes, in spite of the requirement of law for such document to be registered.
20. In the present case, the agreement of sale which requires stamp duty under Article 47-A is executed on a deficit stamped paper, i.e., of Rs.100/- only, yet, the same was marked without 10 BSB, J C.R.P.No.715 of 2020 raising any such objection. It is only during the cross-examination of PW1, such an objection was raised by the defendants. In view of the express prohibition made under Section 36 of the Stamp Act, no such objection can be raised on the ground of insufficiency of stamp duty. As such, the document, which is already marked as exhibit A1, cannot be demarked, and therefore, the impugned order is liable to be set aside.
21. In the result, the Civil Revision Petition is allowed setting aside the docket order, dated 10.01.2020, passed in O.S.No.695 of 2016.
There shall be no order as to costs.
Miscellaneous Petitions, if any, pending shall stand closed.
________________ B.S BHANUMATHI, J 19th October, 2022 RAR