Kumar Roy Vs. Sushil Kumar Agarwal  Insc 709 (31 October 2006)
Sinha & Dalveer Bhandari
out of S.L.P. (C) No.13426 of 2006) S.B. Sinha, J.
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.
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 :
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.
Decree for Permanent Injunction restraining the defendant and his authorised
non and agents from interfering with the act of construction of the 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 :
recalling the order dated 17.2.2003; and
sending the said documents to the Collector for impounding thereof in terms of
Section 38 of the Indian Stamp Act.
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
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.
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.
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
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 :
Stamp Act was, indisputably, enacted keeping in view the revenue of the State.
It defines instrument under Section 2(14) to mean :
"Instrument" includes every document by which any right or liability
is, or purports to be, created, transferred, limited, extended, extinguished or
record;" West Bengal Amendment of the said provision reads as under :
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.
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 :
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
36 and 38 of the Act, which are relevant for the purpose of this case, read as under
36 : Admission of instrument where not to be questioned 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.
38 : Instruments impounded how dealt with
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.
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.
not in dispute that Development Agreement dated 16.1.1995 was typed on a
non-judicial stamp paper of Rs.10/-. It was also not registered.
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.
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.
agreement, as notice hereinbefore, was executed in the year 1995.
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
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.
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.
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.
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
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.
having consented to the document being marked as an exhibit has lost his right
to reopen the question.
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.
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.
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.
attention has also been drawn to a few decisions of the Calcutta High Court,
wherewith we may now deal with.
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
is no quarrel with the aforementioned proposition of law.
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 :
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 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.
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.
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.
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/-.