<• ^ ^ IN THE HONBLE HIGH COURT OF_CHHATTISGARH AT BILASPUR PETITIONER W.P.(C)Al3i3-/2007 (S.B) RADHEHARIPANDEY Plaintiff •^^...•^"^ S/o Ramanand Pandey Aged about €^^ 45 Yrs. R/o Village Raveli,Tahsil Berla, Distt. Durg (C.G.) RESPONDENTS Defendants VERSUS 1 •gfsra SUKHRAM S/o Mansha Ram Dewangan Aged about 55 Yrs., R/o Village Simga Tahsil Simga Distt.'e.wg (C.G.) Rdipiw-'^ 2. STATB OF CHHATTISGARH Through - Collector Raipur Distt. Raipur (C.G) WRIT PETITIONE UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA FORISSUANCE OF WRIT IN THE NATURE OF CERTIORARI, MANDAMUS ORAPPRQPRIATATE ORDBR/DIRECTION ETC. 5 '^ HIGH COURT OF CHHATTISGARH AT BILASPUR Slnate Bench: Hon'Me Shri Justice Prashant Kiunar Mishra PET!TtQN£R RESPONDENTS Writ Petition (Cl hto^967 / 2007 Radhehari Pandey .^ Versus SuMiram and another. Shri Prakash Tiwari, counsel fim-the petitioner. Shri Sudhir Agrawal, counsel for respondent No.1. Shri Sanjeev Agrawal, P.L. for the State/respondent No.2. WRTT pETrriON UN R MITICLE 227 OF THE CQNSTmjTioN OF tNDIA ORALORDER (08.08.2010) The petitioner/plaintiff has fited the suit ftw specific perfonnance of agreement dated 07-06-2005. tn course of recwding <rf statement of plaintiff when the agreement was tendered for maWng exhibit, an objection was raised by the defendant about e admi^ibility of the document on the ground that by the said egreement possession of the land has been handed over/h'ansferred to the purchaser/plaintiff, therefore it requires to be stamped as a conveyance as the same cannot be freated as agreement simpliciter. (2) Altowing the said objection the tria! Court has directect the plaintiff to deposit the defiat stamp duty together with penalty @ 10 times of the stamp duty as welt as.4he poundage fee so that the dwument can be admitted in evidence. (3) Learned counsel for the petttioner, after relying the judgment in the matter of Laxmrnarayan and others Vs. Omjarafcasft ancf <rtfte»s reported in W (2) MPLJ 419 and in the matter of Sat^mantyan \Ga(id Vs. l^imsliyhand offiers reported in 2007 ft)MWT 286 has t. -^- argued ttiat when the defendant has raised a ptea in his written statement that possession was never haraled over to the plaintiff on the date of execution of egreement, the document canncit be treated as a conveyance and that the defendant cannot be allowed to raise obiection r^arding the admissibility of the document wntrary to their pleadings. He would atso submit that in any case the trial Court would not have straightway d»r«Aedthe (Maintiff to deposit to deficit Stamp Duty, 10 times penalty and the poundage fee in view of the provision contained Seitton 38 of ttie Stamp Act. (4) Leamed counset fbr the respondent has argued that the impugned order does not suffer from any infirmtty and that the trial Court has rightly treated the dwumerrt as conveyance and the consequent direction for payment of deficit stamp duty, penalty and poundage fee in accordance with iaw. (5) The questton regarding the admissibiltty of a document when it is not duty stamped has been deatt with under Section 35 of the Stamp Act, 1899. For deciding as to wrtiether or not a document is duly stamped, the nature of the document and the recital made therein are to be considered. tt is not the stand taken by one or other party at the subsequent stage of the iitigation that would determine the nature of document. By an amendment made in Articte 23 of the Stamp Act in its application to the State of M.P. (now Chhattisgarh) by the Indian Stamp (M.P. IInd Amendment} Act, 1990 (Act No. 22 of 1990) an explanation has been insertwl in the sakl articte whteh reads thus:- "Exptanation - For the puipose of this Arttele where in the case \^M agreement to sell immovable property, the possession of any jmmovable propaty is transferred to the purchaser before execution or -5- after execution, such agreement without executing the conveyance in respect thereof then such agreement to setl shatl treated to be a conveyance and stamp duty thereon shatt be (eviable accordingly" (6) In the present case there is no dispute that the agreement dated 07-06-2005 contatns a recital that the pc®sesstonof the sutgect land is transferred to the plaintiff/purchaser. Thus, the trial Court tes not committed any error in hotding that the document is in suffciently stamped and the same cannot be admitted in evidence. t am in respectfutly disagreement with the law taid-down by the M.P. High Court in the matter of Laxmmarayan and otftere Vs. Omprafcasft and others (supra). (7) The next part of the argument raised by leamed counsel fbr the petstioner is about the manner tn which the trial Court has directed the piaintiff to deposit the deficit stamp duty and the penaity. Section 38 of the^Act deals with the procedure s®the how an impounded instrument is to be deatt with, The said provision is reproduced for ready reference hereuncter- "38. InstrtmiCTits inyounded, how deatt wtth. - (1) When the person impounding an instrument under section 33 has by taw or consent of parties authority to receive evidence and aclmits such instrument in evidence upon payment of a penatty as provided by section 35 or of duty as provided by section 37, he shall send to the Coltector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penatty tevied in respect ttrereof, and shatl send such amount to the Collector, or to such person as he may appoint in this behatf. (2) tn every other case, the person so impounding an instrument shalt send it in original to the CottectOT." ^•^-L...-, eo (8) In view of the provision contained in Section 36 of the Act Vne trial Court shoutd have sent the document to the Collector of Stamp who shatl thereafter impound the document in accordance wth law and the procedure laid down under Section 40 ofthe Act. (9) In the matter of Satyanarayan ©audVs. Ramsfngh and offiefs (supra) the M.P. High Court has ateo taken a similar view hoWing ttiat ntien the triat Court refuses to admit any document in ewtence on the ground that the same is insufficientty stamped the proper procedure is to refer the matter to the Cottector Stamp under Section ^ of the Act and not to decicte the amount of its <wn. (10) tn view of the above, the said part of the impugned wder whweby the triai Court has directed the ptaintiff to deposft the deficit stamp duty and penatty is set-aside. In relation to first part of the order hotding the document to be not admissibte in the ewlence, this writ petition is dismi^ed. The tria! Court is dirwted to refer the documents to the Cottector of Stamp for impouncting in accordance vrith the prowsion contained in the Stamp Act. The writ petition is, thus, allowed inpart. Sd//- Prashant Kumar Mishra Judge f~