Shri Amrit Sachdev vs Shri Varendra Singh
2002 Latest Caselaw 1428 Del

JUDGMENT

R.C. Chopra, J.

1. These two applications under Order 47 Rule 1 read with Section 151 CPC and Section 5 of the Limitation Act have been filed by the plaintiff with the prayer to review the orders dated 9.1.20001 passed by the Registrar of this Court in compliance with the orders passed by the Court on 23.8.1999 under Section 33(2)(b) of the Indian Stamp Act. It is also prayed that the delay in the filing of the review application may be condoned. The defendant has filed replies to both these applications and has opposed the prayers made by the plaintiff.

2. The facts relevant for the disposal of those two applications, briefly sated are, that the plaintiff had filed a suit for specific performance on the basis of a receipt Exhibit P-1 pleading that the said receipt contained the terms of the transaction between the plaintiff and the defendant and as such, the property, which is the subject matter of the agreement to sell embodied in the said receipt, is liable to be sold by the defendant to the plaintiff. A prayer for decree against the defendant to specifically perform the terms of the agreement as embodied in the said receipt was made. In his written statement, the defendant averred that the document styled as "earnest money receipt" could not be termed as an agreement to sell between the parties. It was also pleaded in the alternative, in case it was held that the said document was an agreement to sell even then, the same was void and not enforceable as it was obtained by fraud upon the defendant.

3. Vide orders dated 23.8.1999, a learned Single Judge of this Court observed that there was some dispute about the sufficiency of the stamps on Exhibit P-1 and as such, in terms of Section 33(2)(b) of the Indian Stamp Act, the Registrar of this Court was directed to examine as to whether the said document was properly stamped or not. He was also directed to impound the document in case it was found to be insufficiently stamped.

4. The Registrar of this Court vide orders dated 9.1.2001, after hearing counsel for the parties, came to the conclusion that the document Exhibit P-1 was only an "earnest money receipt" and not an agreement to sell and as such, it was properly stamped. The plaintiff, thereafter, filed an IA.No. 1217/2001 questioning the findings of the Registrar that Exhibit P-1 was a receipt only and not an agreement to sell. A learned Single Judge of this Court vide orders dated 19.7.2001 came to the conclusion that Exhibit P-1 was prima facie in the nature of a receipt-cum-agreement to sell and as such, with a view to obviate any objection regarding its admissibility in the course of trial the same be impunded and the Registrar should find out the value of the stamps chargeable on Exhibit P-1. This order was challenged by the defendant before a Division Bench of this Court in FAO(OS) No. 364/2001. Vide orders dated 3.1.2002, the Appellate Court held that the learned Single Judge could not have passed the order dated 19.7.2001 as he was not sitting in appeal over the order of the Registrar dated 9.1.2001, which was in fact Court's own order because the Registrar had acted under delegated powers of Court. The order dated 19.7.2001 passed by the learned Single Judge was, therefore, set aside.

5. The present applications have been now filed by the plaintiff for review of the orders dated 9.1.2001 and condensation of delay in filing the review application mainly on the ground that the findings given by the Registrar in the orders dated 23.8.1999 were erroneous as the Registrar ought to have restricted himself only to the question of the proper stamping of the document (Exhibit P-1) and he had no right to give any finding as to whether the said document was a receipt or an agreement to sell. Learned counsel for the defendant has opposed the review application mainly on the ground that the prayer does not fall strictly within the parameters prescribed for invoking jurisdiction under Order 47 Rule 1 of the Code of Civil Procedure. It is also argued that after the dismissal of the appeal, the plaintiff had no right to file a review application and, if at all the order has to be reviewed, it can be reviewed by the Registrar only. It is also submitted that the plaintiff cannot approbate or reprobate at the same time by calling Exhibit P-1 as a receipt and sometimes calling it as an agreement to sell. It is also submitted that the plaintiff is guilty of suppressing that additional grounds were also raised before the Division Bench.

6. I have heard learned counsel for the plaintiff and learned counsel for the defendant. I have gone through the records.

7. After considering the submissions made by learned counsel for the parties, this Court is of the considered view that neither there are any grounds for review of order dated 9.1.2001 passed by the Registrar nor there is any need to invoke powers under Order 47 Rule 1 of the Code of Civil Procedure. The orders passed by the Registrar under Section 33(2)(b) of the Indian Stamp Act on 9.1.2002, in terms of the delegated powers vide orders dated 23.8.1999, were fully justified and warranted in as such as for returning a finding as to whether the document Exhibit P-1 was properly stamped or not he had to consider the nature of the document Exhibit P-1. The Registrar, therefore, had not at all exceeded his brief by examining the nature of the document and by returning a finding that Exhibit P-1 was an "earnest money receipt" only and not an agreement to sell. However, it may be clarified that the observation made by the learned Registrar in regard to the nature of the document were on the question of stamping of the document only and his findings cannot be taken as adjudication of the disputes between the parties in regard to the nature of the document Exhibit P-1. Even if it is held that in view of delegation of powers by the Court to Registrar under Section 33(3)(b) of Indian Stamp Act this finding should be deemed to be a finding given by the Court, the fact remains that this entire exercise was under the Indian Stamp Act and findings arrived at regarding the nature of Exhibit P-1 were in connection with the action to be initiated under the said Act and not with a view to determine any issue raised in the suit regarding the nature of Exhibit P-1. The Court, on the basis of the pleadings of the parties and the evidence on record, is required to give a final verdict as to whether the document Exhibit P-1 is a receipt or an agreement to sell. This controversy between the parties can be adjudicated upon only after trial and could not be adjudicated upon in an ancillary proceeding under the Indian Stamp Act. In case it is ultimately held that the document Exhibit P-1 is merely a receipt, the conclusion arrived at by the Registrar shall stand reaffirmed by the Court and the document will be held to be sufficiently stamped but in case the Court comes to the conclusion that Exhibit P-1 is an agreement to sell, the Court may order its impounding and direct appropriate action in terms of the Indian Stamps Act.

8. The orders dated 9.1.2001 passed by the Registrar, therefore, call for no review as the same do not suffer from any infirmity or error apparent on record. The Registrar acted in terms of the orders passed by the Court on 23.8.1999. The findings were in exercise of the powers under the Indian Stamp Act 1899 but were not an adjudication of the controversies raised in the suit. In this view of the matter, this Court is of the considered opinion that the application for review filed by the plaintiff has no merit and as such stands dismissed. The application under Section 5 of the limitation Act also is dismissed.