Full Judgment Text
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CASE NO.:
Appeal (civil) 4609 of 2006
PETITIONER:
Shyamal Kumar Roy
RESPONDENT:
Sushil Kumar Agarwal
DATE OF JUDGMENT: 31/10/2006
BENCH:
S.B. Sinha & Dalveer Bhandari
JUDGMENT:
J U D G M E N T
(Arising out of S.L.P. (C) No.13426 of 2006)
S.B. Sinha, J.
Leave granted.
Interpretation of Section 36 of the Indian Stamp Act, 1899 (’the Act’),
as amended in the State of West Bengal by Indian Stamp (West Bengal
Amendment) Act, 1990 (hereinafter referred to as ’the West Bengal Act’),
falls for consideration in this appeal which arises out of a judgment and
order dated 5th May, 2006, whereby and whereunder the Review Application
filed by Appellant herein from and order dated 13.4.2005 passed by the
learned 2nd Civil Judge (Senior Division), Barasat was dismissed.
The basic fact of the matter is not in dispute. The parties hereto
entered into an agreement to develop the suit property. Disputes and
differences having arisen between them in regard to the purported
termination of the said agreement by Appellant, a Suit was filed by
Respondent herein for declaration and permanent injunction in the court of
the Munsif, 3rd Court, Sealdah on 10.1.1997. An interim order of injunction
was passed in the suit, which although was affirmed by the Appellate Court,
but has been set aside by the Revisional Court. Respondent thereafter filed a
suit for specific performance of the contract on 8.1.1999, inter alia, which
was marked as Title Suit No.4 of 1999, praying for the following reliefs :
"i) A decree to be passed for specific performance of
Contract Agreement dated 16th day of January,
1995 directing thereby the defendant to perform
his part of the contract by way of rendering the
exclusive right to the plaintiff to have free access
into the suit property for raising rest of the
construction in respect of second and third floors
of the suit premises and to execute a registered
deed or deeds of conveyance in respect of flats to
be completed in the second floor and third floor of
the suit premises in favour of the plaintiff or in
favour of his nominees on receipt of balance
consideration thereof and commanding the
defendant to extend all sorts of cooperation with
the plaintiff as would be required for construction
of the plaintiff’s allocation in respect of second
and third floor of the suit premises.
ii) A Decree for Permanent Injunction restraining the
defendant and his authorised non and agents from
interfering with the act of construction of the
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plaintiff in respect of his own allocation relating to
second and third floor of the suit premises and/or
from parting with the possession of the super built
structures of the second floor and two garages in
the ground floor or any part thereof in favour of
any third party till final disposal of the suit."
Respondent herein filed the aforementioned Development Agreement
dated 16.1.995. The same was exhibited without any objection on the part
of Appellant herein on 17.02.2003. The parties also adduced their respective
evidences. 16.2.2005 was the date fixed for argument in the suit on which
date Appellant filed two applications : (1) for recalling the order dated
17.2.2003; and (2) for sending the said documents to the Collector for
impounding thereof in terms of Section 38 of the Indian Stamp Act.
By an order dated 13.4.2005, the learned Trial Judge rejected both the
applications. A Revisional Application filed by Appellant before the High
Court has been dismissed by reason of the impugned judgment dated
28.2.2006. A review petition was filed by Appellant was also dismissed by
the High Court by an order dated 5.5.2006.
Mr. Ranjan Mukherjee, learned counsel appearing for Appellant, inter
alia, submitted that the learned courts below committed a manifest error in
relying on Section 36 of the Indian Stamp Act, which cannot be said to have
any application in the instant case, in view of the amendment made by the
State of West Bengal therein, which came into force on 31.1.1994. It was
further submitted that in the decision of this Court in Javer Chand & Ors.
vs. Pukhraj Surana [AIR 1961 SC 1655], whereupon the courts below
relied upon, it had no occasion to consider the purport and object of the State
Act, viz, that the statute imposes a duty upon a court to impound a document
which was insufficiently stamped so as to sub-serve the interest of the
revenue and, thus, the same could not have been relied upon.
As the object and purport of the West Bengal Act was to collect
revenue for the State, it was argued, the learned courts below should have
opined that Section 36 of the Indian Stamp Act is not applicable. Our notice
was further drawn to Schedule 1A of the West Bengal Amendment Act in
terms whereof stamp duty on instruments have been fixed and have
undergone further amendment by the West Bengal Finance Act, 2006. It was
also contended that the High Court also committed a serious error in not
entertaining the review application, although many important questions were
raised therein.
Mr. Rana Mukherjee, learned counsel appearing for Respondent, on
the other hand, submitted that the application filed by Respondent herein
was barred under the proviso appended to Sub-Section (5) of Section 33 of
the West Bengal Act. It was further urged that Section 36 of the Indian
Stamp Act has rightly been applied as Appellant admitted the document to
be taken in evidence without any demur whatsoever.
Before embarking upon rival contentions of the parties, we may notice
the provisions of the Indian Stamp Act as amended in the State of West
Bengal by the Indian Stamp (West Bengal Amendment) Act, 1990 :
Indian Stamp Act was, indisputably, enacted keeping in view the
revenue of the State. It defines instrument under Section 2(14) to mean :
"2.(14) "Instrument" includes every document by which
any right or liability is, or purports to be, created,
transferred, limited, extended, extinguished or record;"
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West Bengal Amendment of the said provision reads as under :
"33.1(a) 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 in his
functions shall, if it appears to him that such instrument
is not duly stamped, impound the same.
(b) Notwithstanding anything contained in Sec. 31, but
without prejudice to the provisions of clause (a) of this
sub-section, the Collector before whom any instrument is
brought under Section 31 for determining the duty with
which the instrument is chargeable, shall, if it appears to
him that such instrument is not duly stamped, impound
the same :
Provided that nothing contained in this clause shall
be deemed to authorize the Collector to impound any
instrument which has not been executed but is brought to
him under Sec.31 for determining the duty with which
the instrument is chargeable or any instrument which he
is authorized to endorse under Section 32".
Section 36 and 38 of the Act, which are relevant for the purpose of
this case, read as under :
"Section 36 : Admission of instrument where not to be
questioned \026 Where an instrument has been admitted in
evidence, such admission shall not, except as provided in
Sec. 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.
Section 38 : Instruments impounded how dealt with \026
(1) Where the person impounding an instrument under
Section 33 has by law or consent of parties authority to
receive evidence and admits, such instrument in evidence
upon payment of a penalty as provided by Section 35 or
of duty as provided by Section 37, he shall send 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
send such amount to the Collector, or to such person as
he may appoint in this behalf.
(2) In every other case, the person so impounding an
instrument shall send it in original to the Collector."
Section 61 of the Act, occurring in Chapter VI deals with Reference
and Revision.
It is not in dispute that Development Agreement dated 16.1.1995 was
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typed on a non-judicial stamp paper of Rs.10/-. It was also not registered.
We, however, in this matter are not concerned with the effect of non-
registration of the said instrument. There is no doubt or dispute that in terms
of Section 33 of the Indian Stamp Act, as amended by the State of West
Bengal, a duty is cast upon the authorities concerned including the Courts to
impound a document where the instrument produced before it is
insufficiently stamped. When a deficiency in stamp duty is brought to the
notice of the Collector or it otherwise comes to his notice, he may call for
the instrument for the purpose of satisfying himself as to the adequacy
placed thereon and proceed to deal with the instrument in terms of Section
38 thereof.
Section 36, however, provides for a ’stand alone’ clause. It
categorically prohibits a court of law from reopening a matter in regard to
the sufficiency or otherwise of the stamp duty paid on an instrument in the
event the same has been admitted in evidence. Only one exception has been
made in this behalf, viz., the provisions contained in Section 61 providing
for reference and revision. In a case where Section 33 of the Act, as
amended by West Bengal Act would be applicable, the proviso appended to
Sub-Section (5) carves out an exception that if no action would be taken
after a period of four years from the date of execution of the instrument.
The agreement, as notice hereinbefore, was executed in the year 1995.
The applications purported to be under Section 151 of the Code of Civil
Procedure, 1908 were filed by Appellant only on 16.2.2005. The
Development Agreement, as noticed hereinbefore, was admitted in evidence
on 17.2.2003. The learned Trial Judge as also the High Court relied upon a
decision of this Court in Javer Chand (supra). An attempt to distinguish
the said decision of this Court was made, inter alia, on the premise that
therein this Court was concerned with interpretation of the provisions of
Marwar Stamp Act, 1947 in respect of two mudatti hundis, which have been
admitted in evidence on payment of duty and penalty, but sought to be made
inadmissible in evidence in terms of the provisions contained in the 1947
Act. This Court opined that once the said document was admitted in
evidence, the new Act i.e. the 1947 Act would be inapplicable, stating :
"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, Section 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 said decision, therefore, is an authority for the proposition that
Section 36 would operate even if a document has been improperly admitted
in evidence. It is of little or no consequence as to whether a document has
been admitted in evidence on determination of a question as regards
admissibility thereof or upon dispensation of formal proof therefor. If a
party to the lis intends that an instrument produced by the other party being
insufficiently stamped should not be admitted in evidence, he must raise an
objection thereto at the appropriate stage. He may not do so only at his peril.
Objection as regards admissibility of a document, thus, specifically
required to be taken that it was not duly stamped. On such objection only
the question is required to be determined judicially.
Reliance has been placed on Ram Rattan (Dead) by Legal
Representatives vs. Bajrang Lal & Ors. [AIR 1978 SC 1393], which in
our opinion has no application to the fact of the present case.
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When there had been no determination as regards sufficiency of the
stamp duty paid on an instrument and in the event the document is taken in
evidence with an endorsement, that "objected, allowed subject to objection",
this Court in Ram Rattan (supra) held that the objection was not judicially
determined and the document was merely tentatively marked and in such a
situation Section 36 would not be attracted. Ram Rattan (supra) also,
therefore, is an authority for the proposition that the party objecting to the
admissibility of the document must raise an objection so as to enable the trial
judge to determine the issue upon application of his judicial mind at the
appropriate stage.
If no objection had been made by Appellant herein in regard to the
admissibility of the said document, he, at a later stage, cannot be permitted
to turn round and contend that the said document is inadmissible in
evidence.
Appellant having consented to the document being marked as an
exhibit has lost his right to reopen the question.
What was necessary was that the document should be marked in
presence of the parties and they had an opportunity to object to the marking
of the document. The question of judicial determination of the matter would
arise provided an objection is taken what document is tendered in evidence
and before it is marked as an exhibit in the case. Before the learned Trial
Judge, reliance was placed on a decision of a learned Single Judge of the
Andhra Pradesh High Court in Vemi Reddy Kota Reddy vs. Vemi Reddy
Prabhakar Reddy [(2004) 3 ICC 832]. In that case there was nothing on
record to show that the document was marked as an exhibit after an
objection has been raised. The said case, therefore, has also no application
to the facts of the present case.
It may be true that the object of Indian Stamp Act is to collect revenue
and the amendments carried out by the State of West Bengal provides for
more stringent steps in that behalf. It may also be true that by reason of
Sub-Section (4) of Section 33 of the West Bengal Act, a duty has been cast
upon the court to apply its mind when an instrument having insufficient
stamp duty is brought to its notice, but, only thereby Section 36 of the Indian
Stamp Act cannot be made inapplicable. Section 36, as indicated
hereinbefore, applies on its own force.
Appellant filed an application under Section 38 of the Indian Stamp
Act. The said provisions were clearly not applicable as thereby procedure
has been laid down as to what steps are required to be taken upon
impounding a document. It furthermore appears that even the question in
regard to the applicability of Sub-Section (4) of Section 33 of the Act had
not been raised.
Our attention has also been drawn to a few decisions of the Calcutta
High Court, wherewith we may now deal with.
In Tridip Das Roy vs. Chitta Ranjan Jana [1992 (2) CLJ 259], the
question which arose for consideration was: ’as to whether an agreement for
sale is an instrument within the meaning of Section 2(14) of the Indian
Stamp Act?’ It was held to be so, inter alia, having regard to the
explanation appended to Item No.5 of Schedule 1A.
There is no quarrel with the aforementioned proposition of law.
In Biswajit Chakraborty vs. Mira Sen Ray [2002 (2) CLJ 449], the
Calcutta High Court was dealing with a case where an objection was raised
that the document tendered was insufficiently stamped, holding :
"My reading of the provisions of Sections 33, 35,
38, 39, 40 & 61 of the Indian Stamp Act, 1899 is that
when a document is tendered in evidence by a party and
an objection is raised by the other side that the document
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is insufficiently stamped, at that stage, the Court assumes
the jurisdiction to impound the document as it was
obligatory to apply the mind of the Court in accordance
with the relevant provisions of the said Act. The object
of Section 33 is to protect the revenue and as such the
Court or such person, as referred to in the said section,
must however, exercise the powers as envisaged under
the said section, if necessary, suo motu, irrespective of
the raising of objection by any of the party."
Again, we are not concerned such a question in this appeal.
In Mujibar Rahman Mondal v. Md. Abdulla Molla & Ors. [2005
(1) CLJ (Cal.) 249], this Court held:-
"...The 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. Once a document
has been marked as an "exhibit" in the case and has been
used by the parties in examination and cross-examination
of their witnesses, Section 36 comes into operation.
Once a document has been admitted in evidence, it is not
open either to the trial Court itself or to a Court of
Appeal or revision to go behind that order. In the case on
hand, the document in question was marked exhibit with
objection which leads to show that the objection as to
admissibility on the ground that the instrument is not
duly stamped has not been judicially determined but it
was merely postponed with tentatively marking it as an
"exhibit". In such circumstance, the said provision of
Section 36, in my view is not attracted..."
The said decision has also no application in the facts and
circumstances of this case.
For the reasons aforementioned, we are of the opinion that the High
Court committed no error in dismissing the revisional application as also the
review application filed by Appellant herein. The appeal is therefore,
dismissed with costs. Counsel’s fee quantified at Rs.5,000/-.