Mr. Shabbir Ahmad S. Khan vs Abdul Hameed Khan Matawan And Anr
2021 Latest Caselaw 2457 Bom

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ISM
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                CIVIL APPELLATE JURISDICTION

                               WRIT PETITION NO. 1211 OF 2020

      Mr. Shabbir Ahmad S. Khan                                   ....Petitioner

              V/s.

      Abdul Hameed Khan Matawan and another                       .....Respondents

      Mr. Shailendra Gangakhedkar i/b Mr. Kapil P. Shetye a/w Mr.
      Sarfaraz Khalife for the Petitioner
      Mr. Piyush Shah a/w Mr. Dishang Shah a/w Mr. Karan Gandhi i/b
      Omkar Paranjape for Respondents


                               CORAM :   NITIN W. SAMBRE, J.

                               DATE:     FEBRUARY 8, 2021.

      P.C.:

      1]      Heard Shri. Gangakhedkar, learned counsel for the Petitioner

      and Mr. Piyush Shah for Respondents.




      2]      This Petition is by the Plaintiff. Respondent claimed to be owner

of plot survey no. 75 & 76 at Mumbra who entered into an agreement

of sale with the Petitioner-Plaintiff on 23/01/2015. It is claimed that

there are two agreements executed by the Respondent-Defendant in

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favour of the Plaintiff.

3] Since the agreement was not honoured, suit being S.C.S. No.

517 of 2015 came to be initiated before the Civil Judge Senior

Division, Thane for specifc performance. It is claimed that before the

issues were framed, Application for impounding was moved by

Respondent-Defendant.

4] Agreement of sale dated 23/01/2015 and the Power of Attorney

are ordered to be impounded at the time of recording of evidence of

the Petitioner-Plaintiff vide order impugned dated 10/12/2019. As

such, this Petition.

5] Submissions of Shri. Gangakhedkar are, under Proviso to

Section 49, an unregistered document which is required to be

registered under the Transfer of Property act or under the

Registration Act affecting immovable property, may be received in

evidence of a contract in Suit for specifc performance or as evidence

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of collateral transaction. Learned counsel would urge that Apex Court

in the matter of M/s. Z. Engineers Construction Pvt. Ltd. and

another Vs. Bipin Bihari Behera and others [AIR 2020 SUPREME

COURT 1140] wherein it is observed provisions of Maharashtra

Stamp Act can be invoked only when an objection regarding

insuffcient stamp duty was judicially raised.

6] According to him, during recording of oral evidence, Trial court

can make a note of such objection and mark the document

tentatively as an Exhibit, subject to an objection which can be

decided at the time of fnal Judgment. According to him, the

objection relates to the defciency of stamp duty of a document, as

such, should have been determined at the fag end of the hearing and

not at this stage of the proceedings. Shri. Gangakhedkar would also

draw support from the Judgment of the Apex Court in the matter of

Ameer Minhaj Vs. Dierdre Elizabeth (Wright) Issar and others [(2018)

7 Supreme Court Cases 639] so as to claim that there is legal

presumption as to properly stamped Power of Attorney and in case

document is hit by the provisions of the Stamp Act or Transfer of

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Property Act, can be decided by the Trial Court after adduction of

oral and documentary evidence.

7] Learned counsel for the Respondent while supporting the order

impugned would urge that considering the nature of document,

recitals therein, the Court below was justifed in passing the order

impugned. According to learned counsel, since the possession is

allegedly transferred, document needs to be properly stamped so as

to receive it in evidence. As such, he has sought dismissal of the

Petition.

8]     Considered rival submissions.




9]        Document under dispute was produced alongwith list at

Exhibit 62 before the Trial Court. When the production of the said

document was objected, this court in Writ Petition No. 8511 of 2019

gave liberty to the parties to seek impounding of a document if

required in the facts and circumstances of the case.

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10] It is not in dispute that document of which impounding was

ordered vide impugned order is an unregistered document which is

titled as Kharedikhat by which possession is allegedly transferred.

Once the possession was transferred, it was necessary to

compulsorily register the document under Section 17 of the

Registration Act.

11] Insuffciently stamped document which is also not registered of

which registration is mandatory cannot be received in evidence as is

apparent from the provisions of Section 34 of the Bombay Stamp Act

and Section 49 of the Registration Act. As far as the contention of

Shri Gangakhedkar that in view of Judgment of the Apex Court in

the matter of M/s. Z. Engineers Construction Pvt. Ltd. and Ameer

Minhaj [Cited supra] that the documents should have been accepted

subject to an objection, as statutory presumption in favour of the

petitioner that the document is duly stamped, and the acceptability

of the document in evidence for inappropriate stamping can be gone

into at the stage of fnal hearing is concerned, same is liable to be

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rejected for the reason that by virtue of the document titled as

Kharedikhat, possession is claimed to have been transferred as

reflected in the recitals therein.

12] In the aforesaid background, it is apparent that the petitioner is

a party to the said document. Case of the petitioner is for specifc

performance is founded on the said document only to which

Petitioner and Respondent are parties. In such an eventuality, claim

of the petitioner that it should have been accepted in evidence subject

to objection, cannot be permitted particularly when the fact remains

that document is neither registered nor properly stamped.

13] As far as the contention that the said issue can be gone into at

the stage of fnal hearing of the suit is concerned, this court is

required to be sensitive to the fact that in the matter of Bipin

Shantilal Panchal Vs. State of Gujarat and Another [AIR 2001 SCC

1158] wherein the Apex court has clarifed that if the objection relates

to the defciency of the stamp duty of a document, court is duty

bound to decide the objection before proceeding further and for all

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other objections procedure suggested as is relied on by Shri

Gangakhedkar can be accepted or relied upon.

14] This court while dealing with the claim in an earlier Writ

Petition as is referred above has taken note of the observations made

by the apex court in the matter of Avinash Kumar Chauhan Vs. Viay

Krishna Mishra [Civil Appeal No. 7350 of 2008] that there is no

prohibition under section 49 of the Registration Act to receive an

unregistered document in evidence for collateral purpose. However

the document needs to be duly stamped or should comply with the

requirement of Section 35 of the Stamp Act. It is also provided for the

consequences that if the document is not duly stamped or is not in

compliance with Section 35 of the Stamp Act, same cannot be

received in evidence even for collateral purpose unless it is duly

stamped or duty or penalty are paid.

15] In the case in hand there are two documents Viz. Power of

Attorney and agreement of sale. No doubt, said document if so

pleaded by the petitioner can be received in evidence only for

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collateral purpose but when it is noticed that the case of the

petitioner is founded on aforesaid two documents, in my opinion, the

contention of the Petitioner that he is protected under the Judgment

of Ameer Minhaj [Cited supra] cannot be accepted.

16] In the aforesaid background, no case for interference is made

out. Petition as such fails stands dismissed.

[NITIN W. SAMBRE, J.]