Document Fragment View

Matching Fragments

BADAR DURREZ AHMED, J (ORAL)

1. This appeal is directed against the order dated 01.10.2013 passed by a learned Single Judge of this court in IA No.20617/2012 in CS(OS) No.2661/2012. The said application was filed by the defendant/appellant herein under Order 7 Rule 11 CPC for rejection of the plaint filed by the respondent/plaintiff. The suit is one for specific performance and injunction.

2. By virtue of the impugned order the said application under Order 7 Rule 11 CPC was dismissed. While doing so the learned Single Judge considered the provisions of Section 17(1A) of the Registration Act, 1908 as also Section 49 thereof. This was the first point urged by the learned counsel for the appellant. The second point was with regard to the provisions of Section 33 and 35 of the Indian Stamp Act and article 23A of Schedule-1A as applicable to Delhi and as amended by the Indian Stamp (Delhi Amendment) Act, 2001.

6. The second point taken by the learned counsel for the appellant was with regard to the provisions of the Indian Stamp Act and Schedule 1A as applicable to Delhi. The learned counsel for the appellant drew our attention to Sections 33 and 35 of the Indian Stamp Act and submitted that any instrument which was chargeable to duty on which the appropriate stamp is not affixed is liable to be impounded on production. The relevant provisions are as under:-

"33. Examination and impounding of instruments.-
8. A plain reading of article 23A shows that it refers to contracts for the transfer of immoveable property in the nature of part performance in any union territory under Section 53A of the Transfer of Property Act, 1882. In the present case the agreement dated 05.08.2011 purports to be on stamp paper of Rs.10/- only. The learned Single Judge while considering this aspect of the matter has dealt with it as under:-
"11. Now, with regard to the submissions that the agreement was not properly stamped, as per Article 23A of Schedule 1A of ISTA, I may state without hesitation that Article 23A also was not attracted inasmuch as it applies to the contracts for transfer of properties under Section 53A of the Transfer of Property Act. As noted, the plaintiffs suit is not based on the part performance under Section 53A of the T.P. Act and the agreement to sell could not be said to be conveyance in the nature of part performance as envisaged in Article 23A. As per Section 2(10) of ISTA, "conveyance" includes conveyance of sale and other instruments by which property, whether movable or immovable, is transferred intra-vivous and which is not otherwise specifically provided for by Schedule-I. By any interpretation, such an agreement to sell cannot be termed as conveyance as defined in Section 2(10) of ISTA. That being so, and the agreement to sell in question not creating any right, title or interest over the suit property, except that of the cause of action asking for the execution of the sale deed, Article 23A was not attracted and thus, the provisions of Sections 33 of ISTA is not attracted. As there is no Article in Schedule-I specifically providing for agreement to sell of immovable property, it would come within the ambit of residuary clause (c) of Article 5 of Schedule 1 of ISTA, which is extended to union territory of Delhi by Delhi Amendment Act of 2001. The stamp duty as per residuary clause (c) of Article 5 thereof is Rs.50/-. The agreement to sell in question being on stamp paper of Rs.10/-, is seen to be deficient of Rs.40/-only and as per Section 35 proviso (a), the same would become admissible in evidence on payment of penalty equivalent to 10 times of the deficient portion of the stamp duty. The deficiency being of Rs.40/- only, the penalty payable comes to Rs.400/- and thus, this penalty and the deficiency of Rs.40/- i.e. Rs.440/- would be payable by the plaintiff for seeking admissibility of this agreement. The plaintiff would be required to do the needful in this regard."