Apart from the same, as per Section 33 of the Act, Court is vested with powers before whom any instrument chargeable in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. Other powers are enumerated thereunder. In my considered opinion, when Ext. P1 agreement was produced before the Rent Control Court, as per Section 33 of the Stamp Act, there is an imperative duty cast upon the Rent Control Court to examine the instrument and having found that it is not duly stamped, it is left with no other option than to pass an order impounding the document. Therefore, it can be clearly seen that irrespective of the marking of the document or considering the same for the purpose of evidence, the Rent Control Court had no other option than to exercise the power conferred under Section 33. Therefore, it cannot be said that the order passed by the Rent Control Court, impounding Ext. P1 document and imposing the stamp duty and penalty is bad. Moreover, the said order passed by the Munsiff Court is not under challenge anywhere.
IN THE HIGH COURT OF KERALA
W.P. (C) No. 1368 of 2017
Decided On: 14.03.2017
Mujeeb Rahman Vs. Sakeer Ali and Ors.
Hon'ble Judges/Coram:
S.P. Chaly, J.
1. This writ petition is filed by the petitioner seeking to quash Exts. P3, P7 and P9, whereby the petitioner was directed to deposit an amount of Rs. 1,98,000/- towards stamp duty and fine as per the direction of the Munsiff's Court, Palakkad in R.C.P. No. 64 of 2014 and consequential actions thereto. Material facts for the disposal of the writ petition are as follows:
Petitioner had let out his building bearing No. 11/297 situated in Palakkad Taluk to the 1st respondent for a period of eleven months, as per Ext. P1 lease agreement. Ext. P1 was executed in Non Judicial Stamp Paper worth Rs. 100/-. Since the 1st respondent sub-let the shop room, petitioner filed RCP No. 64 of 2014 before the Rent Control Court, Palakkad, seeking to evict him. The said RCP was tried along with O.S. No. 748 of 2014 filed by the 1st respondent seeking prohibitory injunction against forcible eviction. Both the aforesaid proceedings were compromised as per joint statement dated 11/08/2015 and compromise filed vide I.A. No. 2446 of 2015 dated 10/08/2015. However, in Ext. P2 order passed by the Rent Control Court, Palakkad, dated 13/08/2015, it is stipulated as follows:
"Penalty and stamp duty as per the order dated 01/08/2015 impounding Ext. A1 document as per Section 33 of the Kerala Stamp Act is not paid by the petitioner in spite of time being given for the same. Therefore, sent the impounded document for further steps under Section 37(2) of Kerala Stamp Act to the District Collector."
It is the contention of the petitioner that in the joint statement as well as in the compromise filed in the aforesaid proceedings, it was agreed by and between the petitioner and the 1st respondent that in case of levy of stamp duty by the authorities, the same shall be borne by the petitioner and 1st respondent equally.
2. Subsequently, petitioner was issued with Ext. P3 notice, directing the petitioner to remit an amount of Rs. 1,98,000/- as directed by the Rent Control Court, Palakkad in Ext. P2 order. On failure, it is threatened, revenue recovery proceedings will be initiated. According to the petitioner, even though petitioner had attempted to submit Ext. P4 application to the 3rd respondent, the same was not accepted to the files. It is contended that since the subject matter is compromised, as per Article 33(b) in the schedule to Kerala Stamp Act, 1959, stamp duty is Rs. 18,000/-. As per Section 30(b) of the Stamp Act, the 1st respondent is liable to pay the amount and therefore, it is necessary to make him a party in the above proceedings. Petitioner requested the 3rd respondent to refer the issue of levy of penalty for considering plea of the petitioner. Petitioner has also submitted Ext. P5 before the 2nd respondent purportedly under Section 39 of the Kerala Stamp Act, requesting to waive the stamp duty, which is pending consideration. In the meanwhile, Ext. P7 notice is issued by the District Registrar (General), Palakkad, directing the petitioner to pay stamp duty as ordered by the Munsiff Court. Petitioner has also filed Ext. P8 through lawyer, disputing the liability of the petitioner. Fact remains, the direction to remit the amount by the District Registrar (General) was not complied with by the petitioner and finally, Ext. P9 was also issued by the District Registrar (General) to the petitioner directing to make the payment. These are the background facts projected by the petitioner to sustain the reliefs sought for by him.
3. Third respondent has filed a counter affidavit refuting the allegations and claims and demands raised by the petitioner. According to the 3rd respondent, the entire actions initiated by the respondents are in accordance with law, and in view of the directives issued by the Munsiff Court in RCP No. 64 of 2014. That apart, it is stated that petitioner submitted a request before the 2nd respondent seeking to absolve him from the payment of the amount, exercising the discretionary power of the Collector as per Section 39(1)(b) of the Act, which was received in the office of the District Collector on 20/08/2016. As per Section 39(1)(b) of the Kerala Stamp Act, if the Collector is of the opinion that such instrument is chargeable with duty and is not duly stamped, he shall require payment of the proper duty or the amount required to make up the same, together with a penalty of ten rupees or if he thinks fit, an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof whether such amount exceeds or falls short often rupees. It is also stated that petitioner was informed from the office of the District Collector, as per law, the penalty imposed by a Court of law cannot be waived by invoking the power under Section 39 of the Act.
4. It is also stated that as per order No. 386(h) of the Registration Manual, if the concerned parties did not remit the deficit stamp duty, and penalty, it has to be realized resorting to revenue recovery proceedings stipulated in Section 46 of Kerala Stamp Act. It was thus, on the failure of the petitioner to make payment, action was initiated by the respondents to recover the amount.
5. Petitioner has filed a reply affidavit, reiterating the stand adopted in the writ petition. It is also stated that the counter affidavit is filed by the 3rd respondent in a very casual manner. When an application is submitted to the 2nd respondent, he ought to have acted immediately on receipt of the same. It is also contended that, the Rent Control Court has acted in accordance with Section 37(2) instead of Section 37(1) of the Kerala Stamp Act, and therefore, there is no necessity for challenging the order in proceedings dated 01/08/2015, as per Ext. P2. It is also stated that permission or modification of the above order of the Court is required especially since the Statute is clear and unambiguous with respect to the steps to be taken by the 2nd respondent in the present matter. Other contentions are also raised to canvass the proposition that under Section 39 of the Kerala Stamp Act, the District Collector is vested with ample powers to waive the stamp duty and the penalty.
6. Heard learned counsel for the petitioner and the learned Government Pleader and perused the documents on record and the pleadings put forth by the respective parties.
7. Taking note of the respective submissions made by the petitioner as well as the learned Government Pleader, the question centres around Sections 37 and 39 of the Kerala Stamp Act, 1959, which read thus:
"37. Instruments impounded how dealt with.-- (1) When the person impounding an instrument under Section 33 has by law or consent of parties authority to receive evidence and admits such instrument in evidence or when he is a registering officer to register such instrument upon payment of a penalty as provided by Section 34 or of duty as provided by Section 36, he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector or to such person as he may appoint in this behalf.
(2) In every other case, the person so impounding an instrument shall send it in original to the Collector.
39. Collector's power to stamp instruments impounded.-- (1) When the Collector impounds any instrument under Section 33, or receives any instrument sent to him under sub-section (2) of Section 37, not being an instrument chargeable with a duty of twenty paise or less, he shall adopt the following procedure:
(a) if he is of opinion that such instrument is duly stamped or is not chargeable with duty, he shall certify by endorsement thereon that it is duly stamped or that it is not so chargeable, as the case may be;
(b) if he is of opinion that such instrument is chargeable with duty and is not duly stamped he shall require the payment of the proper duty or the amount required to make up the same, together with a penalty of ten rupees; or if he thinks fit, an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof whether such amount exceeds or falls short of ten rupees:
Provided that, when such instrument has been impounded only because it has been written in contravention of Section 13 or Section 14, the Collector may, if he thinks fit, remit the whole penalty prescribed by this section.
(2) Every certificate under clause (a) of sub-section (1) shall, for the purposes of this Act, be conclusive evidence of the matters stated therein.
(3) Where an instrument has been sent to the Collector under sub-section (2) of Section 38, the Collector shall, when he has dealt with it as provided by this section, return it to the impounding officer."
8. Apart from the same, as per Section 33 of the Act, Court is vested with powers before whom any instrument chargeable in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. Other powers are enumerated thereunder. In my considered opinion, when Ext. P1 agreement was produced before the Rent Control Court, as per Section 33 of the Stamp Act, there is an imperative duty cast upon the Rent Control Court to examine the instrument and having found that it is not duly stamped, it is left with no other option than to pass an order impounding the document. Therefore, it can be clearly seen that irrespective of the marking of the document or considering the same for the purpose of evidence, the Rent Control Court had no other option than to exercise the power conferred under Section 33. Therefore, it cannot be said that the order passed by the Rent Control Court, impounding Ext. P1 document and imposing the stamp duty and penalty is bad. Moreover, the said order passed by the Munsiff Court is not under challenge anywhere. It was thereupon, as provided under Section 37, the Court has forwarded the same to the District Collector for appropriate action.
9. Now the sole question remains to be considered is whether the District Collector is vested with any powers under Section 39 to waive the stamp duty and penalty imposed by the Court exercising its power under Section 39. On a reading of Section 39, it is clear, same authorizes the District Collector who is impounding any instrument under Section 33 or any instrument sent to him under sub-section (2) of Section 37, not being an instrument chargeable with a duty of twenty paise or less, the procedure prescribed thereunder is to be adopted. Therefore, from a reading of the said section itself, it is clear that the District Collector is not vested with any powers to deal with any circumstances enumerated under Section 37(1). Merely because it is forwarded by the Court under Section 37(2) of the Act, the certificate issued by the Court is unable to be modified. Therefore, it is a clear exclusion of power of the District Collector from interfering with any impounding order passed by a Court of law. Therefore, the contention advanced by learned counsel for the petitioner that the Collector is vested with every power to consider Ext. P5 application submitted by the petitioner under Section 39, seeking to waive off the penalty cannot be sustained under law. Petitioner has not cared to challenge Ext. P2 order passed by the Munsiff's Court, impounding the document. That apart, since the petitioner has produced the document in question before the Court, irrespective of the prescription contained under Section 30 of the Act, petitioner is liable to pay the deficient duty and the penalty thereto. That being the situation, I do not find any reason to issue any direction to the 2nd respondent to consider Ext. P5 application submitted by the petitioner, or to quash the proceedings initiated by the respondents to recover the amount as per Ext. P2 order passed by the Rent Control Court, Palakkad. Sequel to the above discussion is, there are no legal infirmities, illegalities or arbitrariness in the action initiated by the respondents to recover the amount from the petitioner, justifying any interference under Article 226 of the Constitution of India. However, I make it clear that, if there is any agreement by and between the petitioner and the 1st respondent in respect of the duty so payable, the issue is left open.
The writ petition fails, accordingly it is dismissed, however, subject to the observation contained above.
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