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2019 SCC OnLine P&H 6780 : (2019) 3 RCR (Civil) 726 : 2020 AIR
CC 2833
In the High Court of Punjab and Haryana
(BEFORE RITU BAHRI, J.)
Yogesh Kumar Sikka … Petitioner;
Versus
Monika … Respondent.
C.R. No. 4109 of 2019
Decided on July 8, 2019
The Judgment of the Court was delivered by
RITU BAHRI, J. (ORAL):— Challenge in this petition is to order dated
18.04.2019 passed by learned Civil Judge (Jr. Divn.) Ludhiana whereby
an application dated 13.02.2019 (P-4) of the petitioner-defendant, has
been dismissed.
2. Learned counsel for the petitioner-defendant inter alia contends
that the application of the petitioner under Section 35 of the Indian
Stamp Act (for short ‘the Act’) for impounding the alleged agreement
to sell dated 25.05.2015 and for issuance of direction to the plaintiff to
pay the deficiency in stamp along with 10 times penalty has wrongly
been dismissed, vide impugned order dated 18.04.2019 by referring to
judgment of Hon'ble Apex Court in a case of Javer Chand v. Pukhraj
Surana, AIR 1961 SC 1655.
3. Learned counsel is relying upon judgment of Hon'ble the Supreme
Court of India in a case of Ram Rattan (dead) by legal representatives
v. Bajranj Lal, (1978) 3 SCC 236 : AIR 1978 SC 1393 wherein Javer
Chand's case (supra) has been discussed. Learned counsel contend that
if the document is not duly stamped then at the stage of objection, the
trial Court has to decide the objection and if it is not decided after the
objection was raised then the application cannot be dismissed, in view
of Section 36 of the Act.
4. Reference has further been made to judgment of Hon'ble the
Supreme Court in a case of Om Prakash v. Laxminarayan, (2013) 4 RCR
(Civil) 747.
5. Heard learned counsel for the petitioner.
6. In Ram Rattan's case (supra), Hon'ble the Supreme Court in para
6 has observed as under:—
6. When the document was tendered in evidence by the plaintiff
while in witness box, objection having been raised by the defendants
that the document was inadmissible in evidence as it was not duly
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stamped and for want of registration, it was obligatory upon the
learned trial judge to apply his mind to the objection raised and
decide the objection in accordance with law. Tendency sometimes is
to postpone the decision to avoid interruption in the process of
recording evidence and, therefore, a very convenient device is
resorted to, of marking the document in evidence subject to
objection. This, however, would not mean that the objection as to
admissibility on the ground that the instrument is not duly stamped
is judicially decided-, it is merely postponed. In such a situation at a
later stage before the suit is finally disposed of it would nonetheless
be obligatory upon the court to decide the objection. If after
applying mind to the rival contentions the trial court admits a
document in evidence, s. 36 of the Stamp Act would come into play
and such admission cannot be called in question at any stage of the
same
Page: 727
suit or proceeding on the ground that the instrument has not been duly
stamped. The Court, and of necessity it would be trial Court before
which the objection is taken about admissibility of document on the
ground that it is not duly stamped, 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 and where a document has been
inadvertently admitted without the Court applying its mind as to the
question of admissibility, the instrument could not be said to have been
admitted in evidence with a view to attracting s. 36 (see Javar Chand v.
Pukhraj Surana). (1) The, endorsement made by the learned trial judge
that objected, allowed subject to objections clearly indicates that when
the objection was raised it was not judicially determined and the
document was merely tentatively marked and in such a situation s. 36
would not be attracted.
7. Further in Om Parkash's case (supra), Hon'ble the Supreme Court
in para 10 and 11 has observed as under:—
10. The aforesaid Explanation has come into effect with effect
from 26th September, 1990. The Explanation, therefore, creates a
legal fiction. The agreement to sell shall be deemed to be a
conveyance and stamp duty is leviable on an instrument whereby
possession has been transferred. Thus the agreement to sell in
question is a conveyance within the meaning of Section 2(10) of the
Act and is to be duly stamped. Section 35 of the Act makes
instruments not duly stamped inadmissible in evidence, the relevant
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portion whereof reads as follows:
“35. Instruments not duly stamped inadmissible in
evidence, etc.-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, unless such instrument is duly stamped:
Provided that-
(a) any such instrument shall be admitted in evidence on
payment of 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, together with a
penalty of five rupees, or, when ten times the amount of the
proper duty or deficient portion thereof exceeds five rupees,
of a sum equal to ten times such duty or portion;
xx xx xx”
11. From a plain reading of the aforesaid provision, it is evident
that an authority to receive evidence shall not admit any instrument
unless it is duly stamped. An instrument not duly stamped shall be
admitted in evidence on payment of 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 together with penalty. As
we have observed earlier, the deed of agreement having been
insufficiently stamped, the same was inadmissible in evidence. The
court being an authority to receive a document in evidence to give
effect thereto, the agreement to sell with possession is an
instrument which requires payment of the stamp duty applicable to
a deed of conveyance. Duty as required, has not been paid and,
hence, the trial court rightly held the same to be inadmissible in
evidence. The view which we have taken finds support from a
decision of this Court in the case of Avinash Kumar Chauhan v. Vijay
Krishna Mishra, (2009) 1 RCR (Civil) 615 : (2009) 2 SCC 532, in
which it has been held as follows:
“21. It is not in dispute that the possession of the property had
been delivered in favour of the appellant. He has, thus, been
exercising some right in or over the land in question. We are not
concerned with the enforcement of the said agreement. Although
the same was not registered, but registration of the document has
nothing to do with the validity thereof as provided for under the
provisions of the Registration Act, 1908.
22. We have noticed here to before that 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 unregistered deed of
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sale was an instrument which required payment of the stamp
duty applicable to a deed of conveyance. Adequate stamp duty
admittedly
Page: 728
was not paid. The court, therefore, was empowered to pass an order in
terms of Section 35 of the Act.”
8. Reference at this stage can now be made to a Division Bench
judgment of Karnataka High Court in a case of Miss Sandra Lesley Anna
Bartels v. Miss P. Gunavathy, (2014) 12 RCR (Civil) 886 wherein in
para 11 and 12, it has been observed as under:—
11. There are two different circumstances under the Stamp Act for
impounding a document; (1) the Court has power to impound the
document, moment it appears to the Court that such instrument is
not duly stamped and (2) or to wait till such document is tendered
in the evidence. A combined reading of Sections 33 and 34 clearly
reveal that a discretion is granted to the Court either to impound the
document under Section 33 before the same is tendered in evidence
and even if a document is not impounded under Section 33, the
Court is bound to impound the document when the same is tendered
in the evidence under Section 34. In other words, the Court cannot
say that it will wait till the document is tendered in the evidence. It
is only an option given to Court to exercise the power under Section
33 & 34 but the difference between Sections 33 and 34 is that,
Section 34 can be enforced by a Court when a document has to be
received in the evidence but Section 33 can be invoked not only by
the Court, but, by every person in-charge of a public office. A person
in-charge of a public office has no power to exercise the power
vested under Section 34 of the Act.
12. Court cannot say that it would impound the document only
when the document is ten dered in evidence for marking. There may
be instances where duty and penalty payable may be very high and
the party may not choose to rely upon such insufficiently stamped
document in order to avoid stamp duty and penalty. In such
circumstances, it would result in loss of revenue to the ex chequer.
The power of impounding a docu ment is to collect stamp duty and
penalty whenever there is an escape of duty. There fore, when it is
brought to the notice of the Court that a document is insufficiently
stamped, the Court exercising its power un der Section 33 of the Act
has to pass an order at the first instance for impounding the
document. Though there is a discretion vested in the Court to
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exercise powers under Sections 33 and 34 of the Act; no Court can
hold that it would wait till the document is tendered in evidence. In
such circumstances, there may be chances of loss of revenue to the
exchequer.
9. Applying the ratio of the above said judgments, the revision
petition stands allowed and order dated 18.04.2019 is set aside.
10. A direction is given to the trial Court to decide the matter afresh
in accordance with law as per Section 35 of the Act without taking the
objection of Section 36 of the Act. Fresh orders be passed after giving
due notice to the defendant.
———
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