Full Judgment Text
GOPI KRISHNA TRIVEDI
v.
SUDAMA PRASAD OJHA
(Civil Appeal No. 5414 of 2008)
SEPTEMBER 1, 2008
[Dr. Arijit Pasayat and Dr. Mukundakam Sharma, JJ]
The Order of the Court was delivered by
Dr. ARIJIT PASAYAT, J. Heard learned counsel for the parties.
Leave granted.
Challenge in this appeal is to the order passed by a learned
Single Judge of the Calcutta High Court allowing the revision petition
filed by the respondent. In a Suit for specific performance of the
contract for sale of immovable property, the present respondent took
the stand that he had entered into an oral agreement with the
defendant, i.e. the present appellant for purchase of the Suit property
for a consideration of Rs.6,01,000/-. Following the execution of the
contract, an amount of Rs.3,51,000/- was stated to have been paid. It
was followed by another payment of Rs.1,11,618/-. The defendant
acknowledged the factum of acceptance of part payment of the
consideration amount. When the Suit came up for hearing, the
respondent came up with the application for accepting certain
documents, i.e. the documents containing the terms and conditions
of agreement and certain rent receipts. The appellant took the stand
that these documents cannot be admitted because there was no
payment of stamp duty. The Trial Court took the view that the
document is nothing but a letter incorporating the terms and
conditions of an agreement for sale of a property and the receipts
were just acknowledgment of the factum of acceptance of money.
Accordingly, the Trial Court refused to impound the aforesaid
documents.
Challenging the order, a revision petition was filed before the
High Court.
Reliance was placed before the High Court on a decision of this
Court in Brij Mohan and Ors. Vs. Sugra Begum and Ors. (1990 (4)
SCC 147) to contend that when the vital and fundamental terms of an
agreement for sale of immovable property were effected through an
oral agreement, the written agreement incorporating the terms and
conditions of the oral agreement would be deemed to be a formal
agreement only. Since no rights or liabilities have been created
through the document incorporating the terms and conditions of oral
agreement, it cannot be called to be an instrument either.
The High Court, after considering the rival submissions and with
reference to explanation appended to item No.5 of Schedule 1-A of
Stamp Duty on Instruments in West Bengal, concluded as follows:
“The purported letter contains all the terms and conditions of an
agreement for sale of immovable property. What were the terms
and conditions of the alleged oral agreement are not known.
There is nothing on record to show that rights and interest had
been created following execution of an oral agreement. What we
find is the existence of a document incorporating of terms and
conditions of an agreement for sale of an immovable property
and receipts acknowledging receipts of consideration amount.
The agreements containing terms and conditions for transfer of
an immovable property, as such, are required to be properly
stamped in terms of the recent amendment of Stamp Act in West
Bengal. Adequate stamp not having been paid, the trial court is
not right in making the observation that the documents in
question are not to be impounded. Since it is the agreement for
sale, stamp duty will have to be paid in terms of Schedule 1A as
amended. Right and liability having been created or purported to
have been created, transferred and extended or recorded, the
documents in question will come within the meaning of
“instrument” as defined in Section 2(14) of the Indian Stamp
Act.”
Ultimately, the High Court held that right and liability having been
created or purported to have been transferred and extended or
created, the documents in question come within the meaning of
‘instrument’ as defined in Section 2(14) of the Indian Stamp Act,
1899 (in short ‘the Act’). Therefore, the revision petition was allowed
and the Trial Court was directed to take steps for impounding the
documents before having been the documents being marked as
exhibits.
Learned counsel for the appellant submitted that essentially the
dispute related to the terms and conditions in an oral agreement and,
therefore, the High Court was not justified in its view.
Learned counsel for the respondent, on the other hand,
supported the judgment of the High Court.
In view of what has been stated in Brij Mohan’s case (supra), the
High Court was right in holding that the document in question being
an agreement for sale, stamp duty will have to be paid by treating the
document to be an ‘instrument’, as defined in Section 2(14) of the
Act.
The appeal fails and is dismissed.