“Whenever
in
evidence,
the
instrument is
Court to
has
tendered
such
impound it as obligated by section 33 of the
Bombay Stamps Act and then proceed as
required by section 34. Unless the procedure
under the Stamp Act is scrupulously followed
by the Court, a document which is not duly
stamped is not liable to be looked into for any
purpose or received in evidence. The question
of inviting the opposite party to cross-examine
the witness to prove such document, does not
arise. The opposite party cannot be compelled
to
cross-examine
the
witness
unless
the
procedure contemplated under sections 33, 34
and in particular 37 of the Act of 1958 is
scrupulously complied with.”
question
Reading of the above clearly reveals that the
regarding
admissibility
of
a
document
or
insufficiency of the stamp has to be decided at the
threshold and it cannot be postponed. Not only that, the
Court is under a duty to follow the provisions of Sections
33, 34 and 37 of the Act of 1958 scrupulously and till then
the trial Court cannot proceed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : N A G P U R.
WRIT PETITION NO. 2557 OF 2006
1. Namdeorao Bhagwanji Bujade,
VERSUS -
1. Ruprao s/o Hukaji Dhole,
A.B. CHAUDHARI, J.
Decided on;20.08.2007
This writ petition was admitted by this Court on
Since proceedings in the trial Court were
stayed by this Court, the counsel for the parties made a
request for finally deciding the writ petition, as in the
earlier round of litigation, i.e. A.O. No. 113 of 2004 this
Court on 23.8.2005 directed the parties to maintain status
within six months.
quo. The trial Court was directed to decide the suit itself
I accepted the request of learned
counsel for the parties, since the suit was stayed.
2.
By the present petition, the petitioners have
the
application
challenged an order below Ex.68 dated 3.3.2006 rejecting
(Ex.68)
for
sending
the
document
impounded by the Court to the Collector of Stamps and
further directing the defendants to cross-examine the
witness.
3.
FACTS :
A civil suit for specific performance of contract
was filed by the respondents/plaintiffs on the basis of an
agreement
of sale
dated
9.3.2001.
Having entered
appearance in the suit, the petitioners/defendants made an
application for impounding the document- agreement of
sale on the ground that insufficient stamp duty was paid.
The Court made an order on the application (Ex.63)
on
5.12.2006 impounding the document. The document was
however sent to Nazir. The Nazir of the Court on 3.1.2006
made a report that deficit stamp duty along with penalty to
the tune of Rs. 12,199/- was required to be recovered.
Accordingly the respondents paid the said amount on
On 17.1.2006 the petitioners/defendants filed
an application (Ex.68) praying for sending the document to
the Collector of Stamps as per Section 37 of the Bombay
Stamp Act, 1958. The learned trial Court rejected the said
application by the impugned order.
Hence, this writ
petition.
4. ARGUMENTS :
Mr.M.S.
Abbasi,
learned
counsel
for
the
petitioners, argued that the application filed by the
petitioners for impounding having been allowed, the Court
was not justified in sending the document to the Nazir of
the Court, but the requirement was to send the same to the
Collector of Stamps.
After deposit of the amount as
reported by Nazir, the matter could have been referred to
for adjudication.
the Collector of Stamps along with the amount deposited
The petitioners having come to know
about the assessment made by Nazir and about deposit of
Rs.12,199/- on 4.1.2006, without any loss of time made an
The trial Court has
application (Ex.68) on 17.1.2006.
rejected it on the ground that the petitioners did not raise
objection till payment of stamp duty.
He submitted that
assessment was made by Nazir on 3.1.2006 and the stamp
duty was paid by the respondents on 4.1.2006 and hence
there was hardly any occasion for the petitioners to raise
any objection, and no sooner the petitioners came to know
about it they filed the application (Ex.68). Placing reliance
on the decision of this Court in M/s Conwood Agencies
Pvt. Ltd. v. Namdeo Pandurang Panchal & anr. reported
in 2005(1) ALL MR 335, Mr.Abbasi urged that the
procedure required by Sections 33, 34 & 37 of the Act of
1958 is required to be followed at the threshold and this
Court has held that it has to be scrupulously followed and
regarding document under stamped.
that there cannot be postponement of answer on the issue
He further argued
that direction to cross-examine the witness issued by the
trial Court under the impugned order is contrary to what
has been held by this Court in the said decision. Finally he
prayed that this Court should correct the error committed
5.
by the trial Court, which is an error of jurisdiction.
Per contra, Mr.Bhagwani, learned counsel for
respondents was very much critical about the conduct of
the petitioners. He argued that this Court on 23.8.2005 in
A.O. No. 113/04 while directing the parties to maintain
status quo directed the trial Court to decide the suit within
six
months.
He
argued
that
the
petitioners
were
deliberately adopting such tactics to protract the said
litigation by filing the application like Ex.68, though as a
matter of fact, the respondents have paid the penalty as
well as the duty assessed by the Nazir. The respondents
are thus put to prejudice and hence the petition should not
6.
be entertained.
Mr.Bhagwani then argued that at any rate the
respondents having paid the entire duty as assessed by the
Nazir, the very purpose of sending the document to the
Collector of Stamps is achieved because the Division Bench
of this Court in the case of Prasadnagar Co-operative
Housing Society Ltd. v. State of Maharashtra reported in
2005(2) Mh.L.J. 310 has held that the ready reckoner is in
the nature of a guideline and a declaration of prima facie
market value and nothing more. He, therefore, urged that
except prolonging the suit no useful purpose would be
served by entertaining the present writ petition.
He also
relied upon a decision of this Court in Purushottam alias
Nanu U. Sanyasi v. A.N.Jog & ors. reported in 2005(1)
Mh.L.J. 426 and argued that since the petitioners have
followed the proceedings despite the earlier order made by
this Court, they should be penalised. He, therefore, prayed
for dismissal of writ petition with costs.
CONSIDERATION :
7.
At the outset, I find that the decision in M/s
Conwood Agencies Pvt. Ltd, supra, is based on the two
earlier decisions of this Court and this Court emphasizing
the duty of the Court in the matter has observed as under :
“Whenever
in
evidence,
the
instrument is
Court to
has
tendered
such
impound it as obligated by section 33 of the
Bombay Stamps Act and then proceed as
required by section 34. Unless the procedure
under the Stamp Act is scrupulously followed
by the Court, a document which is not duly
stamped is not liable to be looked into for any
purpose or received in evidence. The question
of inviting the opposite party to cross-examine
the witness to prove such document, does not
arise. The opposite party cannot be compelled
to
cross-examine
the
witness
unless
the
procedure contemplated under sections 33, 34
and in particular 37 of the Act of 1958 is
scrupulously complied with.”
question
Reading of the above clearly reveals that the
regarding
admissibility
of
a
document
or
8.
9
insufficiency of the stamp has to be decided at the
threshold and it cannot be postponed. Not only that, the
Court is under a duty to follow the provisions of Sections
33, 34 and 37 of the Act of 1958 scrupulously and till then
the trial Court cannot proceed.
In the instant case, it is seen that after filing of
9.
affidavit by way of evidence by the respondents/plaintiffs
(Ex.68)
application
was
moved
by
the
petitioners/
defendants. In compliance with the provisions of Section
37 of the Act the Court ought to have referred the
document to the Collector of Stamps in accordance with the
procedure and
authority
the
after obtaining
Court
could
report from the said
have
proceeded
further.
Therefore the direction to the petitioner to cross-examine
the witness even before getting the adjudication from the
Collector of Stamps and completing the procedure, as
required by Section 37 of the Act, was incorrect. It is true,
as contended by Mr.Bhagwani, that the respondents have
paid the substantial stamp and penalty thereon and now
there could be hardly any difference that could be arrived
at by the Collector of Stamps, particularly since the ready
However, it cannot be
reckoner is merely a guideline.
forgotten, as held by this Court repeatedly and as stated in
the case of M/s Conwood Agencies Pvt. Ltd., supra, that the
Court is under obligation/duty to follow the procedure as
laid down in Sections 33, 34 & 37 of the Act. I am unable
to ignore the said decision of this Court.
10.
Insofar as anxiety of Mr.Bhagwani, learned
counsel for respondents about delay is concerned, same
can be taken care of.
petition is allowed.
For all these reasons, the writ
Impugned order made by the trial
Court below Ex.68 is quashed and set aside.
The trial
Court is directed to send the document to the Collector of
Stamps as required by Section 37 of the Act and follow the
procedure as laid down therein. The trial Court shall do so
within a period of two weeks from today. The Collector of
Stamps shall complete the adjudication within a period of
two weeks from the receipt of the document from the trial
Court and send the report to the trial Court. Thereafter the
trial Court shall take up the suit for hearing and decide the
same as expeditiously as possible and, in any case, within a
Rule accordingly.
No
JUDGE
order as to costs.
period of four months therefrom.
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