1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4802 OF 2008 Bihari Traders, Technical Division, Through its Partner, Shri.Shamsundar S/o.Jamunadas Gilda Age-47 years, Occu-Business, R/o.Central Hanuman, Latur, District : Latur PETITIONER VERSUS Balkishan S/o.Dwarkadas Bhutada, Age-52 years, Occu-Business, R/o.Kapad Line, Latur, District : Latur. RESPONDENT Mr.V.D.Hon, advocate for petitioner. Mr.C.R.Deshpande, advocate for respondent. (CORAM : A.V.POTDAR, J.) DATE : 13/07/2009 ORAL JUDGMENT : 1. By the present writ petition under Article 227 r/w. Article 226 of The Constitution of India, the petitioner, original defendant in Spl.C.S.No.64/2001 on the file of 3rd Civil Judge, S.D.Latur has challenged the order passed below Exh.75 dated 08/07/2008. 2 2. Rule. 3. Rule made returnable forthwith. By consent of the parties, the writ petition is finally heard at the stage of admission itself. 4. The facts gave rise to file the present writ petition can be summarized as follows. In the Court of Civil Judge, S.D. Latur, the respondent herein has filed Spl.C.S.No. 64/2001 against the petitioner defendant a partnership firm for recovery of amount in the sum of Rs.20,00,000/- The suit for recovery of this amount was filed on the basis of alleged handloan given by the respondent herein to the petitioner under the document executed on 01/03/1996 styled as “receipt”. That amount was paid to the petitioner as per the said document vide cheque no.580 drawn on Janta Sahakari Bank Limited Pune, Branch at Latur, dated 01/03/1996. The cheque was in the sum of Rs.17,00,000/- Under the said document, the petitioner herein has allegedly admitted that he had received an amount of Rs.17,00,000/- by way of handloan which he assured to repay within the period of 1 month. In case he will not repay that amount within the stipulated period, then he will pay the interest @ 18% p.m. till the realization of said amount. It further appears that the petitioner herein failed to repay that agreed amount under this document dated 01/03/1996. Hence on 02/04/2001, another document was executed styled as “Rujuchitthi” means an acknowledgment receipt, in which it is stated that on that day, the parties have settled their accounts in the sum of Rs.23,63,132/-, an 3 amount due and payable by the petitioner to the respondent. The petitioner agreed to repay this amount within the period of 10 days. This document is signed by two witnesses other than the proprietor of the defendant. It appears that in the cause title of the present writ petition as well as the written statement before the trial court, the petitioner herein who is defendant before the trial court has styled himself as partnership firm, but the document at page no.21 and 22 of the present writ petition of which the xerox copies are placed in my hand shows that the documents were executed by the same person, who has verified the written statement as well as the writ petition as proprietor for Bihari Traders, Technical Division. It is not disputed before this Court that whether the petitioner firm in the partnership firm or proprietory firm, hence at this juncture this Court is not dealing with that aspect. 5. It further appears that before the trial court, the respondent herein filed affidavit of examination in chief and alongwith it two documents were tendered in evidence. At that time, there is challenge to these applications as they were not properly and duly stamped, hence the application was moved before the trial court to impound these documents. It further appears that vide order dated 05/09/2005, the then Joint Civil Judge, S.D. Latur passed the order that the document to be impounded under the provisions of The Bombay Stamp Act, 1958, under the assumption that both these documents are bond. It further appears that as per this order, both these documents were referred by the trial Court to the Joint District 4 Director, class-I of Stamps to impound these documents to charge due and deficit stamp duty alongwith the penalty on it. It further appears that vide communication dated 10/01/2006 received by the Assistant Supdt, Civil Judge, S.D. Latur from the office of Jt. District Registrar of Stamps, Latur directing the respondents herein to deposit the amount of deficit stamp duty and penalty by chalan and thereafter the document to be impounded. It further appears that later on an application was moved by the respondent herein under section 151 of C.P.C. to recall this order. After hearing both the sides, 3rd Jt.Civil Judge, S.D. Latur, vide his order dated 08/07/2008, recalled the order passed below Exh.56 by which the documents were referred to the Collector of Stamps to impound and to charge the deficit stamp duty alongwith penalty on it. This order is impugned in this writ petition. 6. Heard advocate for petitioner Mr.V.D.Hon, followed by the arguments of Mr.C.R.Deshpande appearing for the respondent. At the earliest, an objection is raised about the application filed by the respondent which was treated u/s. 151 of CPC by the trial Court When once the order is passed by the trial court, the trial court is not empowered to recall its own order. If the order is passed under some wrong assumption and legal propositions, then according to learned advocate appearing for the petitioner, the respondent to file an application for review as provided under the CPC, which proposition is opposed by learned advocate appearing for the respondent. During the course of arguments, reliance is placed by 5 both the sides on the ruling reported in 1967 Mh.L.J. 970, a Division Bench Judgment of this Court in the matter of Laxmi Investment Co. Pvt.Ltd., Akola versus Tarachand Harbildas a headnote of which observations are in para no.9 which deals with the scope of the Court u/s. 151, 141 of The Civil Procedure Code, wherein it is held that it is settled law that Section 151 of the CPC itself confer any power upon any Court, but is declaratory of power which uncertainly exists in every Court. The section assumes that the power is inherent in the Court and is merely declaratory. 7. Further reliance is placed on the ruling reported in 2005(2) Mh.L.J. 1 in the matter of National Institute of Mental Health and Neuro Sciences versus C.Parameshwara. The reliance is placed about the observations in para no.12 of the judgment cited, wherein it is observed that the jurisdiction u/s. 151 of C.P.C. can not be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive. On this point. Reliance is also placed on the ruling reported in AIR 1983 Bombay 291 in the matter of Smt.Gangabai and others versus Ratankumar and others, wherein in para no.7,8,11 and 12, it is observed that an order passed in the proceeding contrary to Law would be corrected by the same court after knowing that the order was passed by mistake of the Court . For a Court which desires to do justice by correcting its own mistakes, it is not always necessary that the order to be 6 corrected must be a nullity as well as there is no specific provision in CPC enabling the Court to recall an earlier order which is the result of mistake committed by the Court even otherwise apart from the provision of Section 151 of CPC, every court has inherent powers to correct its own mistake. 8. Further reliance is placed on the ruling reported in 2002(1) All M R 792 in the matter of Babasaheb S/o.Laxman Tidke and others versus Karbhari S/o.Bapurao More and others, wherein it is observed in para no.20 that the inherent powers under CPC when the application for recalling earlier order of the Court is filed, the Court has inherent powers to correct is own proceedings when it is satisfied that in passing a particular order, it was misled by one of the parties. 9. Considering the ratio as laid down in all the judgments referred across the bar by both the sides and the facts under which the earlier order was passed by this Court, it is observed in the order that an objection is raised about the document is properly stamped or not under the assumption that the document dated 01/03/1996 is a “bond". 10. The bond is defined u/s.2(c)(i) to (iii) of The Bombay Stamp Act. (i) any instrument whereby a person obliges himself to pay money to another on condition that obligation shall be void if a specified act is performed or is not 7 performed, as the case may be ; (ii) any instrument attested by a witness and not payable to order or bearer, whereby, a person obliges himself to pay money to another, and (iii) any instrument so attested whereby a person, obliges himself to deliver grain or other agricultural produce to another; During the course of arguments, my attention is drawn towards Section 2(L) of The Bombay Stamp Act, which speaks for instrument. My attention is also drawn towards the definition u/s.2(c)(i) of The Bombay Stamp Act in relation to the word used instrument in sub clause (i) of 2(c) of the definition of the Bond. On clear perusal of both these documents, this Court is of the view that both these documents are not covered under any of the sub sections of section 2(c) of the Bombay stamp Act. In the premise, the earlier order passed under the assumption that the documents are bond and require to be stamped as provided under Article (1) of Schedule (1) with the Bombay Stamp Act and the documents were ordered to be impounded and were referred to the Collector of stamps for recovery of the deficit stamp duty and to charge the penalty of these documents. 11. On careful perusal of the documents kept on page no.21 and 22 of the paper book of the present writ petition, it reveals that the document at page no.21 is a receipt dated 01/03/1996. On careful perusal of this document, there is passing of money from the 8 respondent to petitioner by the cheque referred in this document of which there is assurance on the part of the petitioner that that amount will be repaid within the period of 1 month and on failure of which, the petitioner herein undertake to pay interest @ 18% p.m. on the amount due and payable. Thus the fact is clear under this document/instrument that money passes by cheque from the respondent to the petitioner, but as this document is only signed by the petitioner and not signed by the attesting witnesses and it is not a contingent contract then it will not cover under any of the sub clauses u/s. 2(c) of The Bombay Stamp Act, but certainly as there is transfer of money from one hand to other, this document require to be stamped. The document at page no.22 of the paper book alongwith the writ petition is an acknowledgment dated 02/04/2001 by which the dues payable are acknowledged by the petitioner. This document is not stamped at all. As it is an acknowledgment, this document also require to be stamped. 12. Under the impugned order under challenge by way of this writ petition, the entire order of impounding the document is hereby recalled while in the earlier order under the assumption that the documents are bond, directions were given to the Collector of Stamps to recover the deficit stamp duty alongwith the penalty from the respondent. But considering this fact and circumstances, it appears that both the orders are not in accordance with Law. In the premise, both the orders are hereby quashed and set aside by modifying the order that the documents dated 01/03/1996 and 02/04/2001 both 9 be referred to the Collector of Stamps, Latur. The Collector of Stamps , Latur to decide the exact nature of both these documents and to decide under which provisions of The Bombay Stamp Act, these documents require to be stamped and after deciding the nature of the document and the stamp duty payable on these documents, recover the stamp duty according to law alongwith the penalty if any from the respondent herein. If require, the Collector of Stamps to give an opportunity to both the sides of hearing for explanation of these documents if any. 13. Rule thus made absolute as indicated above. The writ petition stands disposed of with above observations, with no order as to costs. (A.V.POTDAR, J.) khs/JULY 2009/wp4802.08