IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932 WP(C).NO. 16332 OF 2010(O) -------------------------- OS.1267/2009 OF PRL.SUB COURT,THRISSUR .................... PETITIONER(S): ---------------------- K.G.K.MENON,S/O.N.M.MENON,RESIDING AT PARAKKATTIL LANE,PATHIRAICKAL,TRICHUR, (NOW RESIDING IN 5F,NEETHY APARTMENTS,PADPERGANG, NEW DELHI-110 092. BY ADV. SRI.V.V.ASOKAN SRI.MAHESH V.MENON RESPONDENT(S): ------------------------- 1. K.JOJU,PROPRIETOR,AKSHAYA PROPERTIES AND DEVELOPERS,THOTTEKKATTU LANE,POONKUNNAM DESOM, TRICHUR-2. 2. AKSHAYA PROPERTIES AND DEVELOPERS, REPRESENTED BY ITS PROPRIETOR-K.V.JOJU, THOTTAKKATTU LANE,POONKUNNAM,TRICHUR. ADV. SRI.JIJO PAUL FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.2391 OF 2007 OF SRO THRISSUR. EXHIBIT P2 TRUE COPY O THE CONSTRUCTION AGREEMENT GIVEN TO THE PETITIONER EXHIBIT P3 TRUE COPY OF THE PLAINT IN O.S. NO.1373 OF 2009 EXHIBIT P4 TRUE COPY OF THE WRITTEN STATEMENT IN O.S. NO.1373 OF 2009 EXHIBIT P5 TRUE COPY OF THE PLAINT IN O.S. NO.1267 OF 2009, SUB COURT THRISSUR EXHIBIT P6 TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.1267 OF 2009, SUB COURT, THRISSUR. EXHIBIT P7 TRUE COPY OF THE CONSTRUCTION AGREEMENT PRODUCED BY THE SECOND RESPONDENT IN O.S.. NO.1267 OF 2009. EXHIBIT P8 TRUE COPY OF THE ORDER OF THE SUB COURT, THRISSUR. RESPONDENT'S EXHIBITS: -------------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.16332 of 2010 ==================================== Dated this the 01st day of June, 2010 J U D G M E N T Exhibit P8, order to the extent it concerned admissibility of Ext.P2, agreement on account of non-registration, deficient stamp duty and its genuineness is under challenge in this Writ Petition at the instance of defendant No.1 in O.S. No.1267 of 2009 of the court of learned Sub Judge, Thrissur. Parties are at war in respect of an agreement for construction of a building. At the time of trial respondent No.1/plaintiff wanted to introduce in evidence as it is admitted before me a counter part of the agreement. Marking of the document was opposed by petitioner on three grounds, viz., (1) document is compulsorily registrable, (2) document is not sufficiently stamped and (3) document is concocted. Learned Sub Judge overruled the objections and admitted the document in evidence observing that its evidentiary value can be considered at the time of final hearing. Learned counsel for petitioner/defendant contended that finding entered by the learned Judge is erroneous. According to the learned counsel Ext.P2 though styled as an agreement is an instrument which declared right over immovable W.P(C) No.16332 of 2010 -: 2 :- property in favour of respondents and hence came under Section 17(1)(b) of the Registration Act (for short, “the Act”). It is also contention of learned counsel that Ext.P2 is an “instrument” or “conveyance” as defined in Sec.2 (d) and (j) of the Stamp Act and hence liable to stamp duty under Article 21 of that Act. Learned counsel for respondents would support the finding entered by the learned Sub Judge. 2. So far as contention that Ext.P2 is concocted and hence it cannot be admitted in evidence is concerned, learned Sub Judge has relegated that question to the stage of final hearing and hence is not required to be decided at this stage. Then the question is whether Ext.P2 is compulsorily registrable as contended by learned counsel for petitioner. Section 17 (1)(b) of the Act states that non-testamentary instruments (other than gift of immovable property) which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property requires registration. According to the learned counsel Ext.P2 is an instrument or conveyance which declared right of respondents in immovable property and came within the mischief W.P(C) No.16332 of 2010 -: 3 :- of Sec.17(1)(b) of the Act. To understand that argument it is necessary to refer to Ext.P2, agreement. What is pressed into service is clause 34 of Ext.P2. That clause says, “Promoter at his discretion may permit the purchase for cancellation of this agreement provided the purchaser on obtaining prior written sanction from the promoter. In the case of such cancellation the purchaser do hereby agree to re-convey the land unconditionally......”. (emphasis supplied) This clause according to the learned counsel for petitioner declares right of respondents over immovable property concerned. I am afraid that argument of learned counsel cannot stand. For, clause 34 does not operate to create, declare or assign any right over the immovable property in favour of respondents. It only provides an agreement on the part of petitioner to re-convey the land unconditionally to respondents or to their nominees in case of the situation referred to therein happening i.e., on cancellation of the document. I can only understand from clause 34 of Ext.P2 that it only contained an W.P(C) No.16332 of 2010 -: 4 :- agreement between the parties as per which on the happening of the event mentioned therein petitioner had to re-convey the land unconditionally to respondents which is not a declaration of right of respondents, nor does it create any right over immovable property in favour of respondents or extinguish right of petitioner. As such contention that Ext.P2 is compulsorily registrable under Sec.17(1) of the Act cannot stand. 3. Then the next question is whether the document is liable for stamp duty under Article 21 of the Stamp Act. Article 21 relied on by learned counsel for petitioner deals with conveyance as defined in Sec.2(d) of the Stamp Act other than a conveyance specified in No. 22. “Conveyance” is defined in Sec.2(d) of the Stamp Act as including conveyance on sale and every instrument by which property, whether movable or immovable is transferred inter vivos and which is not otherwise specifically provided for by the Schedule. “Instrument” is defined in Sec.2(j) as including every document by which any right or liability is or purports to be, created, transferred, limited, extended, extinguished, or recorded but does not include a bill of exchange, promissory note, bill of lading, letter of credit, policy of insurance, transfer of share, debenture, proxy and receipt. I stated that clause 34 of Ext.P2 W.P(C) No.16332 of 2010 -: 5 :- only contained an agreement on the part of purchaser to re- convey the property to the promoter on the happening of events stated therein and that the said document does not in any way convey or purports to convey any right in the immovable property or create, declare, assign or extinguish any right. If that be so Ext.P2 cannot be treated as a conveyance or instrument liable to stamp duty under Article 21 of the Stamp Act. Original of Ext.P2 is an agreement liable for stamp duty under Article 5 of the Stamp Act. Then the question is whether Ext.P2 which is a copy of the said agreement is liable for stamp duty. It is not disputed before me that it is a counter part of the original agreement. For, it is a photocopy of the original but signed by the parties. Hence the document produced in the court below is a counter part and is liable to stamp duty as if in the case of the original under Article 5 of that Act. It follows that the agreement produced before learned Sub Judge being counter part of the original agreement is liable for stamp duty under Article 5 read with Article 24 of the Stamp Act. If stamp duty has not been paid on the courter part of the agreement produced in the court below, it has to be paid with penalty. Writ Petition is disposed of in the following lines: W.P(C) No.16332 of 2010 -: 6 :- Respondent No.1/plaintiff shall pay stamp duty and penalty payable on the agreement produced before the learned Sub Judge as provided under Articles 5 and 24 of the Stamp Act before the case is heard and disposed of. Objection regarding genuineness of the document shall be considered by the learned Sub Judge while deciding the suit. THOMAS P. JOSEPH, JUDGE. vsv