By these writ petitions, the original plaintiff as well
as defendant No.1 have challenged judgment and order dated
03/10/2019, passed by the District Judge-5, Nagpur, in
Miscellaneous Civil Application No. 208 of 2019, whereby
appeal filed by the original defendant No.1 has been allowed
and an agreement of tenancy has been impounded to pay
requisite stamp duty and penalty thereon and thereafter, it is
directed that the said document be exhibited for collateral
purpose. It is significant that the said document is not original
agreement dated 26/10/1999, but, a photo copy thereof.
17. Therefore, the position of law appears to be
absolutely clear to the effect that photo copy of a document
cannot be treated as an “instrument” under Section 2(l) of the
Maharashtra Stamps Act, 1958 and no order for impounding
such document can be passed. Thus, the Court below erred in
passing the impugned order directing that the document in
question i.e. photo copy of alleged agreement dated
26/10/1999, was to be impounded for payment of requisite
stamp duty and penalty thereon. As a result, the consequent
direction for exhibiting the document for collateral purpose
after payment of requisite stamp duty and penalty can also not
be sustained.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Writ Petition No. 8245 of 2019
Shri Pradeep Shyamrao Kakirwar, Vs. Dr. Smt.Seema Arun Mankar,
CORAM : MANISH PITALE, J.
PRONOUNCED ON : 27.04.2020
Rule. Rule is made returnable forthwith. Heard
finally with the consent of learned counsel appearing for rival
parties.
2. By these writ petitions, the original plaintiff as well
as defendant No.1 have challenged judgment and order dated
03/10/2019, passed by the District Judge-5, Nagpur, in
Miscellaneous Civil Application No. 208 of 2019, whereby
appeal filed by the original defendant No.1 has been allowed
and an agreement of tenancy has been impounded to pay
requisite stamp duty and penalty thereon and thereafter, it is
directed that the said document be exhibited for collateral
purpose. It is significant that the said document is not original
agreement dated 26/10/1999, but, a photo copy thereof.
3. The petitioner in Writ Petition No. 7175/2019,
(original plaintiff), who is respondent No.1 in Writ Petition
No. 8245/2019, has filed Regular Civil Suit No. 277/2011,
before the Small Causes Court at Nagpur, against the
defendants seeking eviction and possession of the suit
property. The said plaintiff has claimed in the suit that the
suit property was an open plot when it was given on rent to
the defendant No.1 in the month of October, 1999. Although
it is not specified as to whether the suit property was given on
rent by an oral agreement, in the written statement the
defendant No.1 did not dispute the fact that an open plot was
given on rent from the month of October, 1999. It was claimed
by the defendant No.1 that a temporary structure was
constructed in May, 2000, in the suit property and that
defendants No.2 and 3 were inducted in partnership with
defendant No.1. It is further claimed that the defendants No.
2 and 3 did not have any independent right in the suit
property. The defendants No.2 and 3 also filed their written
statement before the Small Causes Court. The evidence of the
plaintiff was completed and when the cross-examination of
the defendant No.1 was being undertaken, the aforesaid
document claimed to be a tenancy agreement was tendered,
which was denied by the plaintiff. It was claimed that the said
document was a photo copy of the tenancy agreement dated
26/10/1999 and further that the original was with the
plaintiff. It was further claimed that notice to produce the
document was issued, but, the plaintiff had denied the very
existence of the same. When an attempt was made for
document to be exhibited, the plaintiff objected to the same by
disputing the document and denying its very existence. It was
further asserted on behalf of the plaintiff that the said
document was not duly stamped and that it was not a
registered document. The Small Causes Court accepted the
objections raised on behalf of the plaintiff and rejected a
request of defendant No.1 for exhibiting the said document
and the matter was posted for cross-examination of
defendants No.2 and 3.
4. At this stage, the defendant No.1 moved an
application for exhibiting document under Section 49 of the
Registration Act, for collateral purpose. This application was
marked as Exh.165. The plaintiff opposed the said application
and by order dated 19/09/2019, the Small Causes Court
rejected the application, holding that the defendant No.1
failed to state the collateral purpose for which document was
sought to be exhibited and on the basis of vague pleadings,
order under Section 49 of the Registration Act could not be
passed.
5. Aggrieved by the said order, defendant No.1 filed
Miscellaneous Civil Appeal No.208 of 2019, before the Court
below. By the impugned judgment and order, the Court below
partly allowed the appeal in the following manner :
“1. The appeal is partly allowed.
2. The agreement of tenancy dt. 26.10.1999 is
impounded to the payment of requisite stamp duty and
penalty thereon.
3. After payment of the requisite stamp duty and
penalty on the said document it be executed for the
collateral purpose.
4. The question whether the purpose for using the said
document amounts to collateral purpose is kept open
for the decision at the time of final hearing of the suit.
5. The appellant no.1 shall take necessary steps for
payment of stamp duty and penalty thereon as per the
provisions of law on or before next date.”
6. Aggrieved by the said order, both the plaintiff as
well as defendant No.1 had filed the present writ petitions.
The plaintiff i.e. the petitioner in Writ Petition No. 7175/2019,
has challenged impugned order on the ground that the
document sought to be exhibited was only a photo copy and
not the original and, therefore, no order for impounding such
a document could have been passed on proper reading of the
relevant provisions of the Maharashtra Stamps Act, 1958. It
was further submitted that when the defendant No.1 admitted
in written statement that the tenancy was created in October
1999, as claimed by the plaintiff and no reference was made
to the said alleged agreement, there was no question of
permitting photo copy of such an alleged document to be
exhibited and placed on record. It was further submitted that
the Court below committed a grave error in holding that the
said document could be exhibited for collateral purposes and
by further holding that the question whether the purpose for
using the said document amounts to collateral purpose was
kept open for decision at the time of final hearing of the suit,
was self-contradictory and wholly unsustainable. It was
submitted that when such a document could not be
impounded for payment of requisite stamp and penalty
thereon, there was no question of allowing the document to be
exhibited for collateral purpose. Mr. G.B. Sawal, learned
counsel appearing for the plaintiff placed reliance on the
judgment of the Hon’ble Supreme Court in the case of Hariom
Agrawal Vs. Prakash Chand Malviya (2007)8 SCC 514, to
contend that the question whether a photo copy of a
document could be impounded under Stamps Act was no
more res integra. It was submitted that although the said
judgment considered the Madhya Pradesh Stamps Act, the
provisions were similar to the provisions under the
Maharashtra Stamps Act, 1958 and that, therefore, the
impugned judgment and order deserved to be set aside. The
learned counsel also placed reliance on judgment of a learned
Single Judge of this Court in the case of Gayabai Hemlal
Jadhav Vs. Hiraman s/o Rama Chavan and another 2011 (4)
Mh.L.J. 798, to contend that a photo copy could not be said to
be “instrument” as defined under Section 2(l) of the
Maharashtra Stamps Act, 1958 and, therefore, Sections 32(A)
and 33 of the said Act, could not apply to the document in
question in the present case. Reliance was also placed on the
judgments of other High Courts to reiterate the said position
of law and to contend that the impugned order deserved to be
set aside.
7. The defendant No.1 i.e. petitioner in Writ Petition
No. 8245 of 2019, has also challenged the impugned order by
contending that the direction to impound the aforesaid
document ought not to have been passed by the Court below,
because under Section 55 of the Maharashtra Rent Control
Act, 1998, it was the duty of the landlord to get the document
registered and in case of failure, the terms and conditions of
the tenancy, as claimed by the tenant would prevail. On this
basis, it was contended on behalf of the defendant No.1 that
the Court below ought to have exhibited the document for
collateral purpose. It was contended that even if there were
certain admissions given in written statement by defendant
No.1, it was specifically stated in the affidavit in evidence by
the defendant No.1 that the said written statement was
drafted at the behest of original plaintiff, because the litigation
was initially filed by the plaintiff by giving a different
impression to the defendant No.1 and in the affidavit in
evidence, it was brought to the notice of the Small Causes
Court that the written statement was not on express
instructions of defendant No.1 and the correct situation on
facts was placed on record.
8. Mr. S.S. Sitani, learned counsel appearing for
defendant No.1 claimed that when the original document was
in possession of the plaintiff and he was deliberately
suppressing the same, the photo copy of the same ought to
have been permitted to be exhibited by the Court below,
without insistence of impounding the same for payment of
stamp duty and penalty thereon, in the interest of justice.
Reliance was placed on the judgment of the Hon’ble Supreme
Court in the case of Nalinikant Ramdas, Gujjar Vs. Tulasibai
(Dead) by LRs and others AIR 1997 SC 404, to contend that
the Maharashtra Rent Control Act, 1998, was applicable
although the tenancy was created before the Act came into
force, because the crucial date was as to when the right
conferred under the Act was sought to be enforced.
9. Heard learned counsel for rival parties and perused
the material on record. Although the learned counsel
appearing for defendant No.1 has sought to raise various
issues before this Court, including the question of the point in
time the aforesaid Rent Control Act, could be said to be
applicable in the present case, this Court is of the opinion that
the first question that needs to be decided in the present
petitions is, as to whether the document in question, which is
admittedly not the original, but, a photo copy of the alleged
agreement dated 26/10/1999, could have been directed to be
impounded for payment of stamp duty and penalty thereon. It
is only if the said direction could be sustained that the
consequent direction about exhibiting the document for
collateral purpose could be sustained.
10. The relevant provisions of the Maharashtra Stamps
Act, 1958, show that under Sections 32(A) and 33 of the said
Act, there is repeated reference made to the expression
“instrument”.
11. Section 2(l) of the said Act, defines “instrument”
and it reads as follows :
“instrument” includes 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,
cheque, promissory note, bill of lading, letter of
credit, policy of insurance, transfer of share,
debenture, proxy and receipt;”
12. A perusal of the said definition makes it clear that
an “instrument” under the said Act is a document by which
any right or liability is created or extinguished. Such a
document would necessarily be the original of the said
document and in this context, when Section 32(A) of the said
Act is perused, it refers to “instrument” of conveyance,
exchange, gift, etc. In a situation, where there is a short fall in
payment of stamp duty, the Collector of the District has to give
the parties concerned a reasonable opportunity of being heard
and then determine the difference of amount of duty payable
along with penalty and on payment of such amounts,
“instrument” received shall be returned to the officer or the
person concerned.
13. Section 33 of the said Act pertains to examination
and impounding of instruments. This provision gives power to
the competent authority to impound the “instrument” if it is
found to be not duly stamped. The said provision repeatedly
refers to the “instrument”, which is under examination on the
aspect of requisite stamp duty. Reading of the said provision
does not in any manner indicate that a photo copy of an
original document would qualify to be an “instrument” or that
such photo copy could be impounded.
14. In the case of Hariom Agrawal (supra), the Hon’ble
Supreme Court was concerned with a similar question in the
backdrop of Madhya Pradesh Stamps Act, containing
provisions similar to the Maharashtra Stamps Act, 1958. In
the said case, the Trial Court had ordered a photo copy of the
document to be impounded and upon payment of requisite
stamp duty for such photo copy to be sent back to the Court
for consideration admitting the document for secondary
evidence. The order of the Trial Court was challenged before
the High Court and it was held that such photo copy could
neither be impounded nor be accepted in secondary evidence.
On a challenge raised before the Hon’ble Supreme Court, upon
analysis of the relevant provisions and earlier judgments of the
Hon’ble Supreme Court, it was held as follows :
“It is clear from the decisions of this Court and a plain
reading of Sections 33, 35 and 2(14) of the Act that in
instrument which is not duly stamped can be
impounded and when the required fee and penalty
has been paid for such instrument it can be taken in
evidence under Section 35 of the Stamp Act. Sections
33 or 35 are not concerned with any copy of the
instrument and party can only be allowed to rely on
the document which is an instrument within the
meaning of Section 2(14). There is no scope for the
inclusion of the copy of the document for the
purposes of the Stamp Act. Law is now no doubt well
settled that copy of the instrument cannot be
validated by impounding and this cannot be admitted
as secondary evidence under the Stamp Act, 1899.”
15. The following discussion in the said judgment is
also relevant.
“On a plain reading of Section 48-B, we do not find
that the submission of the learned counsel for the
appellant that by virtue of this provision the Collector
has been authorised to impound even copy of the
instrument, is correct. Under this section where the
deficiency of stamp duty is noticed from the copy of
any instrument, the Collector may call for the original
document for inspection, and on failure to produce
the original instrument could presume that proper
stamp duty was not paid on the original instrument
and, thus, recover the same from the person
concerned. Section 48-B does not relate to the
instrument i.e. the original document to be presented
before any person who is authorised to receive the
document in evidence to be impounded on
inadequacy of stamp duty found. The section uses the
phraseology “where the deficiency of stamp duty is
noticed from a copy of any instrument”. Therefore,
when the deficiency of stamp duty from a copy of the
instrument is noticed by the Collector, the Collector is
authorised to act under this Section. On deficiency of
stamp duty being noticed from the copy of the
instrument, the Collector would order production of
original instrument from a person in possession or in
custody of the original instrument. Production is
required by the Collector for the purpose of satisfying
himself whether adequate stamp duty had been paid
on the original instrument or not. In the notice given
to person in possession or in custody of original
instrument, the Collector shall provide for time within
which the original document is required to be
produced before him. If, in spite of the notice, the
original is not produced before the Collector, the
Collector would draw a presumption that original
document is not duly stamped and thereafter may
proceed in the manner provided in Chapter IV. By
virtue of the proviso, the step for recovery of adequate
stamp duty on the original instrument on insufficiency
of the stamp duty paid being noticed from the copy of
the instrument, can only be taken within five years
from the date of execution of such instrument. The
words “the Collector may proceed in the manner
provided in this Chapter” have reference to Section 48
of the Act. Under this section, all duties, penalties
and other sums required to be paid under Chapter IV,
which includes stamp duty, would be recovered by the
Collector by distress and sale of the movable property
of the person who has been called upon to pay the
adequate stamp duty or he can implement the method
of recovery of arrears of land revenue for the dues of
stamp duty. By virtue of provisio to Section 48-B, the
Collector’s power to adjudicate upon the adequacy of
stamp duty on the original instrument on the basis of
copy of the instrument is restricted to the period of
five years from the date of execution of the original
instrument. This section only authorises the Collector
to recover the adequate stamp duty which has been
avoided at the time of execution of the original
instrument. This section does not authorise the
Collector to impound the copy of the instrument.”
16. The said judgment of the Hon’ble Supreme Court
was followed by a learned Single Judge of this case of Gayabai
Hemlal Jadhav (supra) and after referring to the provisions of
the Maharashtra Stamps Act, 1958, applicable in the State of
Maharashtra, it was held as follows :
“16. It can, thus, be concluded that photocopy of the
document cannot be termed as an “instrument” within
the meaning of section 2(14) of the Indian Stamp Act,
1899 or Section 2(l) of the Bombay Stamp Act, 1958
and the provisions of section 33 of the Bombay Tamp
Act cannot be made applicable in respect of copy of
the document.
17. It is needless to say that the trial Court has
adopted a correct approach in the matter and was
justified in turning down the request made by the
petitioner herein. The trial Court would surely
consider the provisions relating to admissibility of the
document, contained in relevant Act, applicable to the
copy of a document and would render appropriate
decision.
18. Considering the limited scope of inquiry by the
trial Court while dealing with application for grant of
probate, determination of the question relating to
entitlement of deceased to the property, in reference
to the document placed on record by the probate
applicant – Respondent No.1 herein, is surely of a
secondary character. The trial Court, in the facts and
circumstances, was justified in rejecting the
application tendered by the petitioner herein.”
17. Therefore, the position of law appears to be
absolutely clear to the effect that photo copy of a document
cannot be treated as an “instrument” under Section 2(l) of the
Maharashtra Stamps Act, 1958 and no order for impounding
such document can be passed. Thus, the Court below erred in
passing the impugned order directing that the document in
question i.e. photo copy of alleged agreement dated
26/10/1999, was to be impounded for payment of requisite
stamp duty and penalty thereon. As a result, the consequent
direction for exhibiting the document for collateral purpose
after payment of requisite stamp duty and penalty can also not
be sustained.
18. The defendant No.1 has claimed that such
impounding of the document was not necessary by placing
reliance on Section 55 of the Maharashtra Rent Control Act,
1998. It was claimed that when such an agreement ought to
have been registered and it was the duty of the landlord to do
so under Section 55 of the aforesaid Act, the document in
question could have been exhibited for collateral purpose even
without impounding. But, the said question sought to be
raised on behalf of the defendant No.1 is irrelevant for the
present controversy, because the first and foremost question is,
as to whether such a photo copy of the original document
could at all be exhibited for collateral purpose and whether it
could be impounded for payment of requisite stamp duty and
penalty thereon. Therefore, reliance placed on the judgment
of the Hon’ble Supreme Court in the case of Nalinikant
Ramdas, Gujjar (supra) on behalf of defendant No.1 is of no
consequence.
19. This Court has not considered the other contentions
sought to be raised on behalf of defendant No.1 with regard to
his written statement and statement made in the affidavit in
evidence on his behalf. Such issues are still at large before the
Small Causes Court and any comment thereon, including on
the issue of applicability of the Maharashtra Rent Control Act,
1999, would not be proper at this stage. The limited question
before this Court is, as to whether the direction of impounding
the aforesaid document for payment of requisite stamp duty
and penalty thereon was itself sustainable.
20. On the basis of position of law clarified by the
Hon’ble Supreme Court and learned Single Judge of this Court
in the aforesaid judgments, it becomes clear that the
impugned judgment and order passed by the Court below
cannot be sustained.
21. In view of above, the writ petitions are disposed of
as follows :
A. The impugned judgment and order passed by the Court
below is quashed and set aside.
B. Consequently, order passed by the Small Causes Court
on Exh.165 is restored.
C. Considering that the suit in the present case is pending
before the Small Causes Court from the year 2011, the
said Court is directed to dispose of the suit expeditiously
and in any case within a period of one year from today.
22. Rule is made absolute in above terms. No order as
to costs.
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