Pujala Siva Prasad vs Mandyam Harinadha Reddy
2022 Latest Caselaw 8818 AP

         THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI


               Civil Revision Petition No.405 of 2021

ORDER:

This revision, under Article 227 of the Constitution of India, is

filed challenging the order, dated 17.02.2020, allowing I.A.No.317

of 2019 in O.S.No.197 of 2015 on the file of the Court of IV

Additional District Judge, Tirupati, filed under Order XIII Rules 3 & 4

and Section 151 CPC to de-exhibit exhibit A1, acknowledgment

letter, dated 10.07.2014.

2. Heard Sri S.Varada Rajulu Chetty, learned counsel appearing

for the revision petitioner/plaintiff and Sri T.D.Phani Kumar, learned

counsel representing Sri Harinath Reddy Soma, learned counsel for

the respondent/defendant.

3. The case of the defendant, in brief, is that the plaintiff

brought the suit for a sum of Rs.15,00,000/- on the basis of an

unregistered mortgage deed, dated 10.07.2014 which the

defendant never executed and is not admissible in evidence for any

purpose for want of registration, since it is not a letter of

acknowledgment, but only a mortgage deed, as the amount was

said to be paid towards a debt and security is created over the

immovable property in respect of the said debt. The plaintiff has

filed chief examination affidavit on 16.07.2019 and the matter was

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posted to 02.08.2019 for cross-examination. The matter was

thereafter entrusted to a junior counsel. Taking advantage of their

absence, the plaintiff misguided the Court and got marked exhibit

A1, which is not admissible as per law. The document has been

inadvertently admitted by the trial Court as exhibit A1. Thus, the

document was not properly admitted in evidence. Hence, the

present petition was filed for de-exhibiting the document, that is,

alleged acknowledgment letter, dated 10.07.2014.

(b) The plaintiff filed counter opposing the petition. The plaintiff

further contends that originally the plaintiff filed the above suit on

31.07.2015 under mortgage for grant of preliminary decree under

the unregistered mortgage, dated 10.07.2014. The trial Court took

an objection on the same day stating that the suit is not

maintainable on an unregistered simple mortgage deed. The plaint

was represented after complying with the objections. The trial

Court rightly admitted the document and marked the same as

exhibit A1. The defendant came up with the present petition to

procrastinate the proceedings and to get wrongful gain for himself.

Hence, the petition is liable to be dismissed.

4. The trial Court, after hearing the counsel for both the parties,

allowed the petition by de-exhibiting exhibit A1 as it was

insufficiently stamped and further holding that exhibit A1 can be

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re-admitted in the evidence of PW1 after paying sufficient stamp

duty and penalty.

5. Aggrieved thereby, the plaintiff preferred this revision petition

contending that the trial Court failed to appreciate that originally the

plaintiff filed the suit for mortgage for grant of preliminary decree

and the suit was registered on compliance of the objection and that

exhibit A1 does not require further stamp duty as it was not a

compulsorily registerable document. However, the same was

admitted in the evidence of PW1 subject to objection. The order

impugned is unsustainable and the same is liable to be set aside.

6. The case of the revision petitioner further is that the

document once admitted in evidence cannot be demarked and

further that the unregistered mortgage deed can be received in

evidence for collateral purpose of proving the suit transaction of

lending amount, and therefore, the order impugned in the revision

is not sustainable.

7. With regard to use of the unregistered mortgage deed for

collateral purpose of establishing loan, he placed reliance on the

decision of this High Court in Yadava Kamalabai v. Bijjam

Venkata subbamma 1 and A. Archana v. D. Uma Maheswara

2005 (5) ALT 769

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Reddy2, wherein it was held that such document can be received in

evidence for collateral purpose to prove the personal covenant to

discharge loan of money as permitted under proviso to Section 49

of the Registration Act.

8. Though originally suit was filed based on mortgage, it was

limited to recovery of money only without enforcing the mortgage.

There is no dispute as to the legal proposition stated in the

decisions cited. These decisions did not deal with the aspect of

stamp duty since it was probably not raised. In fact, the trial Court

also followed the same principle and as a matter of caution noted

that exhibit A1 was admitted in evidence subject to objection to be

decided in the judgment about its admissibility for want of

registration. Since the instrument requires stamp duty at the rate

of 0.5% of the amount secured as required under Article 7 of

schedule 1-A of the Indian Stamp Act, 1899, the trial Court allowed

the petitioner/plaintiff to pay the deficit stamp duty and penalty for

readmitting the document in evidence, and therefore, de-exhibiting

the relevant document, i.e., exhibit A1, is not absolute, but

conditional giving liberty to the petitioner to make good the deficit

stamp duty and get the document admitted.

2019 (50 ALT 299 (AP)

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9. Insofar as the objection that when once a document deficitely

stamped is marked, it cannot be later objected as per Section 36 of

the Indian Stamp Act, 1899, is concerned, learned counsel for the

respondent/defendant placed reliance on the decision of this High

Court in S.Mohan Krishna v. V.Varalakshmamma 3 and

contended that merely because a document is given an exhibit

number by affixing stamp and merely signing thereon, when

nothing discloses about judicial determination of admissibility of the

document, the bar under Section 36 of the Indian Stamp Act does

not come in the way of the parties to raise an objection about the

admissibility of the document. Like in the said decision, in the

present case also, there is no judicial determination of the

admissibility of the document before assigning exhibit number to

exhibit A1. As such, the objection raised by the petitioner that it

cannot be demarked is unsustainable. Thus, this Court is of the

view that no irregularity is committed by the trial Court.

10. Accordingly, the Civil Revision Petition is dismissed.

There shall be no order as to costs.

Miscellaneous petitions, if any, pending shall stand closed.

_________________ B. S. BHANUMATHI, J 17-11-2022 RAR

C.R.P.No.2126 of 2011, dated 04.06.2017