Mrs. Rasheeda Siddiqui vs Mr. Mustafa Aleem Siddiqui & Anr.
2011 Latest Caselaw 4319 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Reserved on: 02.09.2011
                     Judgment Pronounced on: 05.09.2011

+ CS(OS) 667/2008


Mrs. Rasheeda Siddiqui                  ..... Plaintiff
                Through: Mr. Y.P.Narula, Sr. Advocate
                with Mr. Aniruddha Choudhary, Advocate

                     versus


Mr. Mustafa Aleem Siddiqui & Anr.    ..... Defendants
                Through: Mr. Shams Khawaja, Advocate
                for D-1

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1.

Whether Reporters of local papers may be allowed to see the judgment? Yes.

2. To be referred to the Reporter or not? Yes.

3. Whether the judgment should be reported Yes. in Digest?

V.K. JAIN, J

IA No. 7516/2010

1. This is a suit for possession, perpetual injunction

and mandatory injunction. The case of the plaintiff is that

she is the owner of house No. B-1, Khasra No. 234, Bhaskar

Compound, Abul Fazal Enclave, Part-I, Jamia Nagar, New

Delhi-110025 and that the aforesaid property was

unauthorizedly and illegally occupied by the defendants

during her absence when she had gone to USA to reside

with her daughter. The plaintiff has accordingly sought

possession of the suit property from the defendants. She

has also sought an injunction restraining the defendants

from interfering with her possession. She has also claimed

mesne profits from the defendants @ Rs.30,000/- p.m.

2. The case of the plaintiff in respect of ownership of

the suit property is based on documents such as General

Power of Attorney, Agreement to Sell and Purchase, Will,

Possession Letter, receipt etc. all dated 2.6.2004. The

Agreement to Sell and Purchase purports to have been

executed by Shri Shahzad Mirza in favour of the plaintiff, for

a total sale consideration of Rs.5 lakh. It is stated in the

agreement that possession of property No. B-1 comprised in

Khasra No. 234, Bhaskar Compound, Abul Fazal Enclave,

Part-I, Jamia Nagar, New Delhi-110025 has been given to

the purchaser Smt. Rasheeda Afaq Siddiqi. Since, the

plaintiff claims to have obtained possession from the

erstwhile owner of the suit property under an Agreement to

Sell executed in her favour, the provisions of Section 53A of

The Transfer of Property Act, 1882 come into application.

3. Vide IA No. 7516/2010, purporting to have been

filed under Section 151 Code of Civil Procedure, the plaintiff

has sought direction to pay the deficient stamp duty on the

Agreement to Sell and Purchase dated 2.6.2004, which has

been filed in original.

4. The application has been opposed by defendant

No.1, who has stated that there is no justification for

admitting the insufficiently stamped document in evidence.

He has also taken a preliminary objection that the plaintiff

has invoked Section 151 of Code of Civil Procedure, which is

a procedural provision whereas the provisions of The Indian

Stamp Act, 1899 are substantive provisions of law.

5. Section 33 of the Indian Stamp Act, 1899, to the

extent it is relevant, provides that every person having by

law or by consent of parties, authority to receive evidence,

and every person in charge of a public office, except an

officer of police, before whom any instrument, chargeable, in

his opinion, with duty, is produced or comes in the

performance of his functions, shall, if it appears to him that

such instrument is not duly stamped, impound the same.

Section 35 of the Act, to the extent it is relevant, provides

that an instrument which is chargeable with duty shall not

be admitted in evidence unless it is duly stamped, but, such

an instrument shall be admitted in evidence, on payment of

the requisite duty together with a penalty of five rupees, or,

when ten times the amount of the proper duty or deficient

portion thereof exceeds five rupees, of a sum equal to ten

times the proper duty/deficient duty. Section 38 of the Act

provides that where the person impounding an instrument

under Section 33 has the authority to receive evidence and

he admits such instrument in evidence on payment of

penalty specified in Section 35, he shall send to the

Collector an authenticated copy of such instrument,

together with a certificate in writing, stating the amount of

duty and penalty levied in respect thereof, and shall send

such amount to the Collector, or to such person which the

Collector may appoint in his behalf. In other cases, the

person impounding the instrument is required to send it in

original to the Collector. Section 39 of the Act provides that

when a copy of the instrument is sent to the Collector under

Section 38, sub-section(1), he may, if thinks fit, refund any

portion of the penalty in excess of rupees five which has

been paid in respect of such instrument.

It would thus be seen that whenever an instrument

which is not stamped or is inadequately stamped is filed in

a Court (which by law as authority to receive evidence), it is

required to be impounded, but the Court has to admit such

a document in evidence if the person relying upon the

document pays the deficient stamp duty along with a

penalty which is ten times the amount of deficient stamp

duty. The Court after payment of the deficient stamp duty

along with the prescribed penalty is required to forward a

copy of the instrument along with the requisite certificate

indicating the amount of duty as well as the penalty, to the

Collector who may, in his discretion, remit such portion of

the penalty as he may deem appropriate. In such a case,

the original document need not be sent to the Collector. If

however, the deficient stamp duty along with requisite

penalty is not paid, the Court is required to send the

document, in original, to the Collector.

6. In Chilakuri Gangulappa v. Revenue Divisional

Officer, Madanpalle & Anr. (2001) 4 SSC 197 the appellant

filed a Civil Suit basing his claim on an agreement dated

26.6.1986. When the agreement was produced in the

Court, it was found to be insufficiently stamped and

accordingly it was impounded and forwarded to the

delegatee of the Collector for taking further action in the

matter. The delegatee of the Collector was of the view that

these agreement required additional stamp duty of

Rs.3895/- and imposed penalty of Rs.38950/- being ten

times the deficient stamp duty. The order of the delegatee of

the Collector was challenged before the Senior Civil Judge,

who held that the appeal was not maintainable. A Revision

filed before the High Court was also dismissed. When the

matter reached the Supreme Court by way of Special

Appeal, Supreme Court was of the view that it was Section

33 of the Indian Stamp Act, which was attracted to such an

instrument. Noticing that the Court has the power to admit

the document in evidence, if the party producing the same

would pay the stamp duty together with a penalty

amounting to ten times the deficient stamp duty, Supreme

Court observed that when the Court chooses to admit the

document on compliance with the condition of payment of

deficient stamp duty along with prescribed penalty, then

the Court needs to forward only a copy of the document to

the Collector, together with the amount collected from the

party for taking adjudicatory steps and in case the party

refuses to pay the amount of the stamp duty and penalty,

the Court has no other option except to impound the

document and forward the same to the Collector. Supreme

Court was of the view that the trial Court should have asked

the appellant as to whether he would remit the deficient

portion of the stamp duty together with a penalty

amounting to ten times of the deficient stamp duty and if

the appellant agreed to do so it had to proceed with the trial

after admitting the documents in evidence and it had in the

meanwhile to forward a copy of the document to the

Collector for the purpose of adjudicating on the question of

deficiency of stamp duty as provided in Section 40(1)(b) of

the Act. It was further observed that only if the appellant

was unwilling to remit the amount, the Court was to

forward the original of the document itself to the Collector

for the purpose of adjudicating on the question of deficiency

of the stamp duty.

7. The agreement dated 2.6.2004 being a contract for

transfer of immovable property in the nature of part

performance, Article 23A of Schedule 1A, applicable to

Delhi, is attracted and 90% of the duty payable on a

conveyance is required to be paid on this document. The

plaintiff therefore, is directed to pay balance of 90% of the

duty which was payable on a conveyance, at the time this

agreement purports to have been executed, along with ten

times the amount of deficient stamp duty as penalty, within

four weeks from the date of this order. On payment of the

deficient stamp duty along with penalty in terms of this

order, the Registry shall send the requisite certificate under

Section 38(1) of The Indian Stamp Act, 1899 to the

Collector, detailing the amount of deficient stamp duty as

well as the amount of penalty along with the amount

deposited by the plaintiff. The original document in that

case need not be sent to the Collector. If however, the

plaintiff fails to deposit the deficient stamp duty and penalty

in terms of this order, the Registry shall send the original

agreement to sell and purchase dated 2.6.2004 to the

Collector in terms of Section 38(2) of The Indian Stamp Act,

1899.

8. As regards the objection that the plaintiff has

invoked Section 151 of Code of Civil Procedure, I find no

merit in the objection since the application of the plaintiff

can always be treated as an application under Section 35 of

The Indian Stamp Act and it is treated as such.

The application stands disposed of in terms of this

order.

CS(OS) No.667/2008

The matter be listed before the Joint Registrar on

24th October, 2011 for admission/denial of documents and

before the Court on 12th March, 2012 for framing of issues.

(V.K. JAIN) JUDGE SEPTEMBER 05, 2011 vn