Gopi Krishna Trivedi
Vs. Sudama Prasad Ojha [2008] INSC 1474 (1 September 2008)
Judgment
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 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.
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