Case: M/S TERAI TEA COMPANY LIMITED Vs. KUMKUM MITTAL

stamp duty which was paid on the deed of conveyance which the appellant is indisputedly at liberty to recover by due process of law but that will not give any benefit in reference to the agreement to sell dated 15 th January, 1990 which indisputedly was unstamped and in the given circumstances, the High Court has not committed any error in impounding the document.12. We have heard learned counsel for the parties and with their assistance perused the material available on record.13. The indisputed facts which can easily be discernible from the records are that in reference to the suit property, there was an agreement to sell dated 15 th January, 1990 executed by late Dhirendra Nath Bhowmick in favour of appellant-plaintiff for the sale of tea estate namely, M/s. Dharanipur Tea Estate for a consideration of Rs. 10,11,000/- for which part payment of Rs. 2,11,000/- was made and since late Dhirendra Nath Bhowmick failed to fulfil his obligation, suit for specific performance no. 240 of 1990 at the instance of the appellant came to be instituted. In the said pending suit no. 240 of 1990, since the interim injunction was refused, appeal came to be preferred and during pendency of the appeal, the parties to the proceedings entered into a compromise and the Division Bench of the High Court vide its order dated 2 nd August, 1991 granted consent decree on enhancement of a consideration from original amount of Rs. 10,11,000/- to Rs. 12,11,000/-. In sequel thereto, the deed of conveyance was executed on 3 rd August, 1991 and stamp duty of Rs. 1,85,000/- was paid by the appellant and full consideration of Rs. 12,11,000/- was paid by the appellant to Dhirendra Nath Bhowmick.14. This fact was not in the notice of the appellant that prior to filing of the suit no. 240 of 1990, earlier suit no. 8 of 1984 was filed by Dhirendra Nath Bhowmick and his wife for declaration that the transfer of controlling interest in the shares of the company, namely, M/s. the New Red Bank Tea Company Private Ltd. was not valid and a declaration was sought that he had legal and equitable right, title and interest in respect of the said Dharanipur Tea Estate and restoration of possession was pending adjudication. The consent decree dated 2 nd August, 1991 pursuant to which the deed of conveyance was executed on 3 rd August, 1991 and stamp duty of Rs. 1,85,000/- was paid that came to be challenged in this Court by M/s. New Red Bank Tea Company Private Ltd. who indisputedly was not party to the proceedings which was instituted at the instance of the appellant (Suit No. 240 of 1990).15. After the parties being heard, this Court allowed the civil appeal under its order dated 9 th September, 1991 and set aside the consent decree dated 2 nd August, 1991 on the premise that suit no. 240 of 1990 and suit no. 8 of 1984 ought to have been tried together and the suit for specific performance could not have been decreed by consent without determining the legal title and factum of possession of the suit property. The title and possession could not have been decided without impleading the respondent M/s. The New Red Bank Tea Company Private Ltd. as a defendant to the suit. By setting aside the consent decree dated 2 nd August, 1991, in the consequence, the deed of conveyance dated 3 rd August, 1991 also came to be cancelled and after the order of this Court in Civil Appeal No. 3569 of 1991 dated 9 th September, 1991, it reveals that M/s. the New Red Bank Tea Company Private Ltd. has been impleaded as a defendant in suit no. 240 of 1990 filed at the instance of the appellant and under the directions of this Court, both the suits are clubbed and to be heard together on merits.16. In the peculiar facts and circumstances, where the parties to the proceedings originally in Suit No. 240 of 1990 filed at the instance of the appellant have consented to obtain a consent decree of specific performance dated 2 nd August, 1991 pursuant to which deed of conveyance was executed on 3 rd August, 1991 and full stamp duty of Rs. 1,85,000/- was paid by the appellant and no objection was raised by the respondent at any stage in reference to the agreement to sell dated 15 th January, 1990 in the suit for specific performance and the decree dated 2 nd August, 1991 although it has been set aside by this Court at the instance of the third party to the proceedings, namely, M/s. the New Red Bank Tea Company Private Ltd. and once the finding has been affirmed that the appellant is entitled for refund of Rs. 1,85,000/- towards stamp duty which was paid on the deed of conveyance, the appellant who has always shown his bonafides in transfer of full consideration after which deed of conveyance was executed and stamp duty of Rs. 1,85,000/- was paid which he is indisputedly entitled for refund, it is not open for the respondent(s) to question as they always remained consented to the decree passed by the Court dated 2 nd August, 1991 which although came to be set aside at the instance of the third party, namely, M/s. the New Red Bank Tea Company Private Ltd.17. In the facts and circumstances, it will not give any cause of action to the respondent to raise an objection for impounding of the document invoking Section 35 of the Indian Stamps Act, 1899 more so when the appellant had paid the stamp duty of Rs. 1,85,000/- and is entitled for refund which indisputedly was never claimed. In our considered view, in the facts and circumstances of the case, it was not open for the Division Bench under the impugned judgment to set aside the order of the Single Judge which was one of the possible view in the peculiar facts and circumstances of the case.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]16. In the peculiar facts and circumstances, where the parties to the proceedings originally in Suit No. 240 of 1990 filed at the instance of the appellant have consented to obtain a consent decree of specific performance dated 2 nd August, 1991 pursuant to which deed of conveyance was executed on 3 rd August, 1991 and full stamp duty of Rs. 1,85,000/- was paid by the appellant and no objection was raised by the respondent at any stage in reference to the agreement to sell dated 15 th January, 1990 in the suit for specific performance and the decree dated 2 nd August, 1991 although it has been set aside by this Court at the instance of the third party to the proceedings, namely, M/s. the New Red Bank Tea Company Private Ltd. and once the finding has been affirmed that the appellant is entitled for refund of Rs. 1,85,000/- towards stamp duty which was paid on the deed of conveyance, the appellant who has always shown his bonafides in transfer of full consideration after which deed of conveyance was executed and stamp duty of Rs. 1,85,000/- was paid which he is indisputedly entitled for refund, it is not open for the respondent(s) to question as they always remained consented to the decree passed by the Court dated 2 nd August, 1991 which although came to be set aside at the instance of the third party, namely, M/s. the New Red Bank Tea Company Private Ltd.17. In the facts and circumstances, it will not give any cause of action to the respondent to raise an objection for impounding of the document invoking Section 35 of the Indian Stamps Act, 1899 more so when the appellant had paid the stamp duty of Rs. 1,85,000/- and is entitled for refund which indisputedly was never claimed. In our considered view, in the facts and circumstances of the case, it was not open for the Division Bench under the impugned judgment to set aside the order of the Single Judge which was one of the possible view in the peculiar facts and circumstances of the case.