stamp duty penalty - impleading of real owner = An objection was raised stating that the agreements are not properly stamped and not registered. Therefore, the petitioner filed an application to send the documents to the Collector under the Indian Stamp Act for collection of stamp duty and penalty. It is stated that the authority, to whom the documents were marked, refused to impound them by observing that the property covered by the agreements belongs to Sri Swamy Hathiramji Mutt and obviously, they sought to enforce Section 22-A of the Registration Act as amended by A.P. Act 19 of 2007 (for short 'the Act'). With this background, the petitioner sought to make the documents part of the record once again.= This is only in the limited context of application of the provisions of the Indian Stamp Act or the Registration Act and not otherwise. The documents in question shall be received in evidence, subject to proof and relevance. Since the Collector expressed the view that the deficit stamp duty on the document cannot be received, on the ground that the property is recorded in the name of Sri Swamy Hathiramji Mutt, the trial Court shall insist on the petitioner, to implead the Mutt as one of the defendants and proceed further, after the Mutt is made as a party and it is given an opportunity to file its written statement. The civil miscellaneous petition filed in this civil revision petition shall also stand disposed of. There shall be no order as to costs.


THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY        

Civil Revision Petition No.4709 of 2013

28.01.2013
       
Kukku Venkataratnam.

K.Sujilabai and others.

Counsel for the petitioner    : Sri Nimmagadda Satyanarayana

Counsel for respondents : Sri J.M.Naidu

<GIST:

>HEAD NOTE:  

?Cases referred:
1.2010(6) ALT 128

ORDER:
        The petitioner filed O.S.No.20 of 2003 in the Court of Additional Senior
Civil Judge, Tirupati, for the relief of specific performance of two agreements
of sale, dated 29.07.1991 and 01.12.1992.
During the trial of the suit, the
petitioner sought to file the agreements referred to above.
 An objection was
raised stating that the agreements are not properly stamped and not registered.
Therefore, the petitioner filed an application to send the documents to the
Collector under the Indian Stamp Act for collection of stamp duty and penalty.

It is stated that the authority, to whom the documents were marked, refused to
impound them by observing that the property covered by the agreements belongs to
Sri Swamy Hathiramji Mutt and obviously, they sought to enforce Section 22-A of
the Registration Act as amended by A.P. Act 19 of 2007 (for short 'the Act').
With this background, the petitioner sought to make the documents part of the
record once again.
        On behalf of the respondents, an objection was raised.  Therefore, the
trial Court heard the matter in detail and passed an order, dated 29.08.2012
refusing to receive the documents.  It was observed that the person, who
executed the agreements of sale himself did not have title and that though there
is a mention as to delivery of possession, the agreements were not registered as
required under Section 17 of the Act.  Placing reliance upon the judgment of
this Court in Burra Anitha vs. Elagari Mallava and others1, the trial Court took
the view that a document, which is insufficiently stamped cannot be received
even for collateral purpose.  The said order is challenged in this revision.
        Sri Nimmagadda Satyanarayana, learned counsel for the petitioner submits
that the objection raised as to the registration of the documents is untenable,
in view of the facility created under proviso to Section 49 of Registration Act.
He further submits that the objection as to the insufficiency of stamp duty was
addressed on earlier occasion and once the document has been sent to an
authority under the Indian Stamp Act and he returned the same, it must be
assumed that there is proper compliance.  He contends that the trial Court was
not justified in expressing its view on the question of title of the executant
of the agreements.
        Sri J.M.Naidu, learned counsel for the respondents, on the other hand,
submits that unless the documents are properly stamped, they cannot be received
in evidence and even by this time, the defect as to deficiency of stamp duty was
not rectified.  He further submits that the requirement as to registration is
also equally important.
        The basis for the petitioner to claim the relief of specific performance
is the set of two agreements referred to above.  Admittedly, the agreements are
not registered.  The question as to whether they were required to be registered
and if so, whether they can be received in evidence would be considered a bit
later.  The objection about the admissibility, on the ground that the documents
are not sufficiently stamped was raised at an earlier stage.  Obviously, to get
that defect cured, the petitioner filed an application seeking reference of the
same to the Collector under the Indian Stamp Act.  However, no determination as
such has taken place before that authority, on the ground that the property
covered by the agreements attracts Section 22-A of the Act.
        Whenever a document, which is required to be stamped under the relevant
provisions of law, is either not stamped at all or is insufficiently stamped,
the Indian Stamp Act prohibits the same from being received in evidence, before
any Court or authority.  However, such defect can be cured, by collecting
deficit stamp duty and in certain cases, by levying penalty.  In the instant
case, an effort to get the defect cured was made.  If the authority conferred
with the power to cure the defect refuses to do so, the party cannot be pushed
to a state of helplessness.  The readiness on the part of the concerned party to
pay the deficit stamp duty and penalty, if any, before the competent authority
can be treated as a sufficient ground to receive the document in evidence, if
the concerned authority expresses inability or refuses to cure the defect.  This
may sound a bit abnormal and departure from the normal practice.  The same is
however resorted to, lest the entire proceedings get locked up in an
inextricable or vicious circle.
        The trial Court placed reliance upon the judgment in Burra Anitha's case
(1 supra) in support of its view that an insufficiently stamped document cannot
be received in evidence for any purpose whatever.  In that case, an objection as
to the admissibility of a document, at the stage of enquiry into an
interlocutory application filed under Order 39 Rules 1 and 2 C.P.C., was raised,
on the ground that it was improperly stamped and not registered.  The trial
Court took the view that the question as to admissibility of such document can
be considered at the stage of hearing of the suit and it cannot be received in
evidence, at the interlocutory stage.  This Court took the view that even at the
interlocutory stage, an unstamped or improperly stamped document cannot be
received in evidence.  Similar observation was made about the registration.
However, it is not clear as to whether the suit was filed for the relief of
specific performance of an agreement of sale.  It has already been mentioned
that the petitioner did make efforts to get the defect as to insufficiency of
stamp duty cured, but his efforts did not fructify.  Further, the facts of Burra
Anitha's case (1 supra) are substantially different from those in the case on
hand.  While there cannot be any quarrel with the principle laid down in that
judgment, the peculiarity of the facts of the present case cannot be ignored.
        Coming to the question of registration, the plea of the respondents was
based upon an amendment caused to Article 47-A of the Indian Stamp Act and the
relevant provisions of the Act, which provide for registration of an agreement
of sale also, in case it contains a clause as to delivery of possession.  Though
there is some dispute as to whether the amendment covers the agreements in
question, the facility created under provsio to Section 49 of the Act cannot be
lost sight off.  The proviso carves out two exceptions to the principle that if
a document which is otherwise required to be registered cannot be received in
evidence, unless it is registered.  The first is when it is relied upon in a
suit for specific performance and the second is when it is sought to be used for
collateral purpose.  Since the suit on hand is the one for specific performance,
the bar contained under Section 49 of the Act cannot be applied.   Therefore,
the view taken by the trial Court as to admissibility of the document cannot be
sustained.
        While examining the matter about the admissibility of the document, the
trial Court made certain observations touching upon the title of the vendor of
the petitioners.  This is not the stage to deal with the same.  While dealing
with the admissibility of the document, proper care must be taken to avoid any
observation or indication touching upon the merits of the matter.  May be, the
contents are to be taken note of.
This is only in the limited context of
application of the provisions of the Indian Stamp Act or the Registration Act
and not otherwise.
        Therefore, the civil revision petition is allowed and the order under
revision is set aside.  
The documents in question shall be received in evidence,
subject to proof and relevance.  Since the Collector expressed the view that the
deficit stamp duty on the document cannot be received, on the ground that the
property is recorded in the name of Sri Swamy Hathiramji Mutt, the trial Court
shall insist on the petitioner, to implead the Mutt as one of the defendants and
proceed further, after the Mutt is made as a party and it is given an
opportunity to file its written statement.
        The civil miscellaneous petition filed in this civil revision petition
shall also stand disposed of.  There shall be no order as to costs.

____________________  
L.NARASIMHA REDDY, J    
Date: 28.01.2013

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