Sri Barid Baran Roy vs Gopal Banerjee And Others
2021 Latest Caselaw 4210 Cal

   02
11.08.2021

TN

CO No. 2047 of 2019

Sri Barid Baran Roy Vs.

Gopal Banerjee and others

(Via video conference)

Mr. Gopal Ghosh

.... for the petitioner

Mr. Raja Basu Chowdhury, Mr. Rahul Poddar

.... for the opposite party no.13

Mr. Saptanshu Basu, Mr. Aniruddha Chatterjee, Mr. Anindya Bose, Mr. Chandrachur Chatterjee, Mr. Diptendu Mondal

.... for the opposite party no.14

Mr. Rishabh Dutta Gupta, Mr. Arijit Bardhan

.... for the opposite party nos.15 and 16

The present dispute concerns an order of the

trial court accepting the assessment made by the

Collector in respect of a particular plot of land, which

was the subject-matter of an agreement, sought to be

relied on by the plaintiff/petitioner for the purpose of

proceeding with the suit for specific performance of

the said agreement.

Learned counsel for the petitioner argues that

the Collector gave no opportunity to the petitioner to

present the petitioner's version of the appropriate

valuation of the property and unilaterally assessed

such stamp duty. The court, as such, acted without

jurisdiction in accepting such assessment

mechanically without granting any opportunity to the

plaintiff/petitioner to controvert such assessment.

It is further contended by learned counsel for

the petitioner that since the prayer for specific

performance in the suit is restricted to Schedule-'D' of

the plaint and the plaintiff/petitioner has already

deposited adequate stamp duty in respect of the sale

deeds executed in connection with the other portions

of the property encompassed by the agreement, the

trial court also acted without jurisdiction in directing

the plaintiff to pay the entire stamp duty for the

property afresh, overlooking the effect of Section 5 of

the Stamp Act.

Learned senior counsel appearing for the

opposite parties, in reply, contends that, in the event

the petitioner has a grievance against the assessment,

it is always open to the petitioner to approach the

appropriate authorities under the Stamp Act for

refund.

That apart, it is argued that Section 33 of the

Indian Stamp Act, 1899 (for brevity "the 1899 Act")

does not distinguish, as such, between the entire

subject-matter of the agreement-in-question and any

particular portion thereof, but envisages stamp duty

to be paid on the entire document sought to be relied

on.

Learned counsel for the petitioner places

reliance upon a co-ordinate Bench judgment of this

court, rendered in Bidhan Nirman Pvt. Ltd. vs. State of

West Bengal, reported at 2013 (5) CHN 6, in support of

the proposition that the market value of the subject

property cannot be determined arbitrarily without

mentioning the methods/basis of such determination

and without granting an opportunity of hearing to all

the interested parties. Hence, it is further contended

by the petitioner, the impugned order is vitiated by

contravention of the proposition laid down in the said

report.

A perusal of Section 33 of the 1899 Act clearly

shows that, as rightly contended on behalf of the

opposite parties, the provision does not contemplate

segregation of any portion covered by the agreement,

in respect of which the claim of specific performance

or other reliefs has been restricted in the plaint, for

the purpose of impoundment. The contemplation of

the said section encompasses the document, sought

to be relied on, as a whole and, as such, the argument

of the petitioner, that the petitioner is liable to deposit

stamp duty only for the portion of the subject property

regarding which relief has been sought in the suit,

does not hold water.

That apart, in the event the petitioner has any

grievance against such assessment by the Collector,

ample recourse is available to the petitioner for

seeking refund of the amount under Sections 44 and

45 of the 1899 Act itself. Although the petitioner

sought to rely on Section 47A of the 1899 Act (as

amended in West Bengal) in support of the proposition

that the authorities specified under sub-section (3)

thereof can only determine the market value after

giving the parties concerned an opportunity of being

heard, does not hold good in the present case, since

Section 47A(1) contemplates a situation where the

Registering Officer, under the Registration Act, 1908,

while registering any instrument (including an

agreement), has reason to believe that the market

value of the property has not been duly set forth in

the instrument, such Officer shall take appropriate

steps within the purview of the said section for

assessment of the market value.

Such a situation has not arisen in the present

case, since the Collector assessed the market value on

the request of the civil court and there was no option

left before the court itself but to accept such

assessment as it is, within the contemplation of

Sections 33 and 35 of the 1899 Act.

Hence, the ratio laid down in the cited report

does not apply to the present case.

Accordingly, there is no merit in the revisional

application. CO No.2047 of 2019 is dismissed on

contest, without any order as to costs.

Urgent photostat certified copies of this order, if

applied for, be made available to the parties upon

compliance with the requisite formalities.

(Sabyasachi Bhattacharyya, J.)