Calcutta High Court (Appellete Side)
Shaidulla Molla vs Sk. Abul Kashem on 26 August, 2021
163
26.08.2021
TN
CO No.3385 of 2008
Shaidulla Molla
Vs.
Sk. Abul Kashem
(Via video conference)
Mr. Rabindranath Mahato,
Mr. Aritra Shankar Ray
.... for the petitioner
Mr. P.K. Banerjee,
Miss. Krishna Yadav
.... for the opposite party
The present revisional application has been filed
on the limited question as to whether the trial court
was justified in imposing ten times the deficient stamp
duty as penalty, pursuant to Section 35, proviso (a) of
the Stamp Act, 1899 (for short, "the 1899 Act"),
without looking into the surrounding circumstances
or the materials on record and/or the financial
condition of the petitioner and other yardsticks which
are relevant for assessing the penalty.
Learned counsel places reliance on Gangappa
and another vs. Fakkirappa, reported at (2019) 3 SCC
788, in support of his arguments.
Learned counsel further submits that, in order
to obviate prolongation of the matter if the petitioner
is compelled to approach the Collector with an
application under Section 39 of the 1899 Act, this
court ought to mitigate the quantum of penalty, taking
into consideration the facts sought to be brought
before this court by way of a supplementary affidavit,
which is filed in court today with the leave of the
court.
Learned counsel appearing for the opposite
party controverts such submissions and specifically
submits that Section 35, proviso (a) mandates that the
court would direct deposit of a sum equal to ten times
of the deficit court fees as penalty. As such, it is
argued that the judgment passed by the Supreme
Court is not relevant in the present context.
A perusal of Section 35, proviso (a) of the 1899
Act clearly reveals that when ten times the amount of
the proper duty or deficient portion thereof exceeds
five rupees, the court shall require a sum equal to ten
times of such duty or portion to be paid as penalty by
the party to the litigation which is relying on the
document-in-question.
In the present case, the trial court did precisely
that and cannot be faulted for doing so, in view of
there being no scope of exercising discretion in the
hands of the trial court within the contemplation of
Section 35, proviso (a) of the 1899 Act.
In the cited report, the Supreme Court exercised
its powers under Section 142 of the Constitution of
India and confirmed the quantum of the of penalty by
the trial court on the ground that the suit had been
kept pending for a long time in the said case.
However, the said judgment did not deal with
the issue as to whether it is mandatory for the court
to give reasons and/or any scope for the trial court to
exercise discretion in the matter of imposing the
quantum of penalty. As such, the cited report cannot
be said to be a precedent on the issue involved in the
present revisional application.
The language of the statute, in particular
Section 35, proviso (a) of the 1899 Act, clearly leaves
no scope of discretion in the hands of the trial court to
remit or reduce the quantum of penalty below ten per
cent of the deficit stamp duty, in the event such duty
exceeds rupees five, as in the present case.
Hence, there is no infirmity in the impugned
order.
Accordingly, CO No.3385 of 2008 is disposed of
without interfering with the impugned order, making
it clear that none of the observations made herein
and/or in the order impugned herein shall preclude
the petitioner from approaching the Collector under
Section 39 of the 1899 Act.
If such an application is made, the Collector will
be at liberty to decide and dispose of the same upon
hearing both sides, if necessary, in accordance with
law, without being influenced by any of the
observations made herein.
There will be no 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.)
