Andhra Pradesh High Court - Amravati

Sri T V K Satyanarayana, ... vs Sri T V Srinivasa Rao, ... on 5 February, 2021

Bench: Lalitha Kanneganti

     THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

             CIVIL REVISION PETITION No.1679 of 2016

ORDER:

This civil revision petition is filed under Article 227 of the

Constitution of India assailing the order dated 11.02.2016 passed

in O.S.No.155 of 2015 on the file of the Court of Senior Civil Judge,

Bobbili, Vizianagaram District, whereby the Court below imposed

Rs.84,000/- as stamp duty and penalty on a receipt dated

03.08.1991 basing on the market value existing in 2005 and also

imposed penalty of Rs.5,70,20,040/- on the document styling as

release deed dated 26.02.1992, basing on the market value

existing on the date of presentation of the document into the Court

i.e. 2014.

2. The facts of the case in nutshell are that originally the

plaintiff, who is 1st respondent herein filed O.S.No.155 of 2015 on

the file of the Senior Civil Judge, Bobbili seeking partition of the

plaint schedule properties into four equal shares and deliver 1/4th

share to the plaintiff by metes and bounds, to render the accounts

for the profits in 1/4th share with interest at 24% p.a. The revision

petitioner/1st defendant filed written statement and was contesting

the suit. He also filed additional written statement.

3. The plaintiff earlier filed C.R.P.No.364 of 2016 before this

Court challenging the order dated 28.12.2015, whereby the Court

below passed an order to collect and remit stamp duty and penalty

in respect of unstamped documents filed by the respondents /

defendants. This Court has disposed of the said revision by order

dated 29.01.2016 observing that:-

"A perusal of the office note put up by the office of the Court below, apparently no specific order has been passed with regard to collection of stamp duty and payment of penalty in tune with the calculation memo filed by the petitioner/plaintiff and the objection raised by the plaintiff. It also does not show whether the calculation memo filed by the plaintiff as considered or not?

In view of the above facts and circumstances and the submissions made by the learned senior counsel, I am of the view that before deciding the issue of collection of stamp duty and payment of penalty imposed, the calculation memo filed by the petitioner/ plaintiff needs to be properly considered."

4. After the revision was disposed of, the Court below assessed

the stamp duty basing on the Division Bench judgment of this

Court in Midia Anasuyamma and another Vs. Choppela

Lakshmamma1 and basing on the market value existing at the

time of execution of the document. The Court below assessed the

penalty as per the market value as on the date of presentation of

the document into the Court. While assessing the stamp duty on

receipt dated 03.08.1981, stamp duty was levied at Rs.1,200/- by

taking the market value of the document in the year 1991-92. But

when it comes to penalty the Court below directed the petitioner to

pay penalty of Rs.84,000/- on the receipt dated 03.08.1981

holding that the same was presented into the Court in the year

2005. In the same manner with regard to document titled as

release deed dated 26.02.1992, the Court below assessed the

stamp duty of Rs.39,270/-, whereas coming to the penalty, the

Court below assessed the same at Rs.5,70,20,040/- by observing

that the date of presentation of the same into the Court is in the

year 2014. Assailing the same, the present revision has been filed.

1991 (1) ALT 430

5. Heard Sri S.S.Prasad, learned senior counsel appearing on

behalf of the petitioner and though M/s Bharadwaj Associates filed

caveat on behalf of the 1st respondent, none appeared on his

behalf.

6. Sri S.S.Prasad, learned senior counsel appearing on behalf of

the petitioner submits that stamp duty and penalty on any

document has to be levied basing on the market value existing as

on the date of the document, but not as on the date of presentation

of the said document into the Court.

7. Perused the record and the judgment of this Court in Midia

Anasuyamma's case (supra). A perusal of the order passed by the

Court below, prima facie appears that the Court below could not

understand the ratio laid down by this Court in a proper

perspective. In Midia Anasuyamma's case, while dealing with the

question as to whether levy of stamp duty and penalty on an

instrument placing reliance in earlier judgments in Narayanan

Chetti Vs. Karuppathan [(1881) ILR 3 Mad 251] and in

A.Chandrasekhar Vs. R.Narasimha Reddy (1990 (1) ALT 264), the

Division Bench held that the date of execution of document is

relevant for the purpose of stamp duty. The Division Bench

further placed reliance on the judgment of Rajasthan High Court in

Nanga Vs. Dhannalal (AIR 1962 Rajasthan 62), wherein it was

held that the stamp duty payable will be according to the law in

force on the date of execution. Finally, the Division Bench held

that alternatively, it will be open to the first defendant, if she is so

advised, to pay the necessary stamp duty as per law in force on

04.09.1959. So far as penalty is concerned, it will be the penalty

payable on the date of the presentation of the document.

8. The Court below while placing reliance on the last paragraph

of the judgment misunderstood the ratio laid down by the Division

Bench of this Court and directed the revision petitioner to pay the

penalty basing on the market value existing as on the date of

presentation of the document.

9. Section 35 of Indian Stamp Act, 1899 reads thus:

35. Instruments not duly stamped inadmissible in evidence, etc.--No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped: Provided that--

(a) any such instrument [shall], be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;

(b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;

(c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;

(d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898);

(e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act.

10. Section 35 (a) indicates that in case deficit stamp duty

exceeds rupees five, ten times the stamp duty or portion has to be

levied as penalty. In fact, the instructions given by the Full Bench

are clear and unambiguous. The deficit duty has to be determined

on the market value existing as on the date of execution of the

document and penalty has to be levied on the deficit stamp duty

that was determined, but not on the market value as on the date of

presentation of the document into the Court. Therefore, the order

impugned warrants interference of this Court and it deserves to be

set aside.

11. Accordingly, the civil revision petition is allowed and the

order dated 11.02.2016 passed in O.S.No.155 of 2015 on the file of