Madras High Court
Vasantha Vellaisami vs Vivek Sivagiri on 23 February, 2021
C.R.P.(P.D).Nos.2782 & 2783 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
C.R.P.(P.D).Nos.2782 and 2783 of 2016
and C.M.P.No.14207 of 2016
Vasantha Vellaisami ...Petitioner in
Both C.R.Ps
Vs.
Vivek Sivagiri,
Represented by his
Power of Attorney Agent,
P.Chinnayan ...Respondent in
Both C.R.Ps
Common Prayer: Civil Revision Petitions filed under Article 227 of the
Constitution of India to set aside the impugned orders dated 12.07.2016
passed in I.A.Nos.13607 of 2015 and 532 of 2016 in O.S.No.6825 of 2012
on the file of VI Assistant City Civil Court, Chennai.
For Petitioner in
both C.R.Ps : Mr.Thriyambak J.Kannan
For Respondent in
both C.R.Ps : Notice served (No Appearance)
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C.R.P.(P.D).Nos.2782 & 2783 of 2016
COMMON ORDER
These Civil Revision Petitions have been filed to set aside the
impugned orders dated 12.07.2016 passed in I.A.Nos.13607 of 2015 and
532 of 2016 in O.S.No.6825 of 2012 on the file of VI Assistant City Civil
Court, Chennai.
2.The respondent filed a suit for declaration and injunction in
respect of the suit schedule property as against the defendants, in which the
petitioner is the 1st defendant. The respondent filed the suit through his
power of attorney-agent. The power of attorney was examined as P.W.1.
While examination of P.W.1, the power of attorney marked the document
executed by the respondent and it was marked Ex.A1. At that juncture, the
petitioner filed petitions in I.A.Nos.13607 of 2015 and 532 of 2016 to
impound the Ex.A1 and to stay all further proceedings of the suit. Both the
petitions were dismissed and aggrieved by the same, the petitioner preferred
these Civil Revision Petitions.
3.The learned counsel for the petitioner would submit that
admittedly the Ex.A1, unstamped and unregistered power of attorney
executed by the respondent. The power of attorney is none other than the
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C.R.P.(P.D).Nos.2782 & 2783 of 2016
father in law of the respondent. The Ex.A1 has been printed in the hundred
rupees stamp paper, which has been purchased in India and thereafter it was
sent back to USA. It was executed at USA in front of Notary Public.
Thereafter it was sent to India and admittedly, it was not adjudicated before
the authority concerned. He further submitted that the said Ex.A1, must be
adjudicated before concerned Collector within a period of three months as
per the procedure contemplated under the Indian Stamp Act.
4.Further, the Section 17(2)(v) of the Tamil Nadu Registration
Act, 1908, contemplated that any document other than the documents
specified in sub-section (1-A), not itself creating, declaring, assigning,
limiting or extinguishing any right, title or interest of the value of one
hundred rupees and upwards to or in immovable property, but merely
creating a right to obtain another document which will, when executed,
create, declare, assign, limit or extinguish any such right, title or interest.
Further, he pointed out that the power of attorney, recognized for the
purpose of Section 32 of the Tamilnadu Registration Act, viz., the persons to
present the document for presentation, if the principal at the time aforesaid
does not reside in India a power of attorney executed before and
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C.R.P.(P.D).Nos.2782 & 2783 of 2016
authenticated by a Notary Public or any Court, Judge, Magistrate, Indian
counsel or vice counsel or representative of the Central Government.
Admittedly, the Ex.A1 is unstamped and unregistered one. Therefore, it is
necessarily impounded for payment of Stamp duty and penalty as
contemplated under the Tamil Nadu Stamp Act. In support of his
contention, he relied upon the following Judgments:-
1.Government of Andhra Pradesh and others Vs. P.Laxmi Devi
[(2008) 4 SCC 720]
2. Malaysian Airlines Systems BHD Vs. STIC Travels (P) Ltd.,
[(2001) 1 SCC 451]
3. R.Kalyani and others Vs. T.Rose Mukundakumar [2014 (2)
CTC 157]
4. D.Balachandran Vs. T.C.Shanmugam [2013-3-L.W.99]
5.Though notice was served to the respondent and no one has
present before this Court, either by person or through his counsel.
6.The petitioner is the 1st defendant in the suit filed by the
respondent herein for declaration, declaring that the settlement deed dated
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10.01.2007 registered vide document No.73 of 2007 as null and void and
for permanent injunction in respect of the suit schedule property.
7.The principal of the plaintiff is residing at USA. He executed
the power of attorney in favour of his father in law to conduct the suit, on
behalf of him. On the strength of the power of attorney, power agent filed a
suit and marked Ex.A1-power of attorney. While the matter was posted for
cross examination of P.W.1., the petitioner filed a petition to impound the
Ex.A1. According to the petitioner, the Stamp paper of Ex.A1 was
purchased at Chennai and it was sent to USA after prompting the power of
attorney posted before the Notary Public at USA and then it was sent to
India. The said power of attorney executed outside India and as such it
requires adjudication within a period of three months as contemplated under
Section 17 of the Registration Act.
8.In this regard, the learned counsel for the petitioner relied upon
the Judgment in D.Balachandran Vs. T.C.Shanmugam [2013-3-L.W.99].
Relevant paragraphs are extracted here:-
5.However, the position under the Stamp Act is
entirely different. Under Section 35 of the Stamp Act, no
instrument chargeable with duty shall be admitted in
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C.R.P.(P.D).Nos.2782 & 2783 of 2016
evidence for any purpose by any person having by law or
consent of parties authority to receive evidence, or shall be
acted upon, unless such instrument is duly stamped.
Therefore, as per Section 35 of the Stamp Act, there is a
total prohibition to receive in evidence the unstamped
document.
..................
.................
9.Further, Section 33 of the Stamp Act, casts a
duty upon the person, who is in-charge to receive evidence
before whom the instrument is produced, if it appears to
him that the same is not duly stamped, impound the same
and sub-section 2 of Section 33 laid down the procedure
for invoking the process of impounding.
10.Further, a reading of Section 35 also makes it
clear that an instrument, which is not duly stamped shall
not be acted upon. Under Section 36 of the Stamp Act,
admission of an instrument in evidence, shall not be called
in question at any stage of the same suit or proceeding on
the ground that the instrument has not been duly stamped.
Therefore, under Section 36 of the Stamp Act, once a
document, which has not duly stamped, has been admitted
in evidence without any objection, later the admissibility of
that document cannot be challenged on the ground that it
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C.R.P.(P.D).Nos.2782 & 2783 of 2016
has not been duly stamped. But, Section 36 does not lay
down any prohibition that such document, which has not
been duly stamped and admitted in evidence can be acted
upon. Therefore, a combined reading of Sections 35 and
36 of the Stamp Act, makes it clear that even though a
document was admitted in evidence, which was not duly
stamped, the admission cannot be questioned later by
virtue of Section 36 on the ground that the document was
not duly stamped. But as per Section 35, the Court shall
not act upon that document, unless such document is duly
stamped. Therefore, relying upon a document, which is not
duly stamped, though admitted in evidence is prohibited
under Section 35. Further, as per the Judgment reported in
2003 (8) SCC 752, an objection that the document, which
is sought to be proved is itself inadmissible in evidence can
be raised at any stage of the case. Therefore, the Court
below committed serious error in dismissing the petition
filed by the petitioner."
9.This Court has held that no instrument shall be admitted in
evidence for any purpose as contemplated under Section 35 of the Stamp
Act, unless such instrument is duly stamped. Further as per Section 33 of
the Stamp Act, an instrument, necessarily has to be impounded as per the
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C.R.P.(P.D).Nos.2782 & 2783 of 2016
procedure contemplated under Section 33(2) of the Stamp Act. He also
relied upon the Judgment in the case of R.Kalyani and others Vs. T.Rose
Mukundakumar [2014 (2) CTC 157]. Relevant paragraphs are given
below:-
"20.In similar situation, this Court in the
Judgment reported in Dinakaran Vs. Venkatesan and 3
others, 2007 (5) CTC 77: 2007 (4) LW 342 had directed
the Trial Court to ascertain the Stamp duty and penalty
payable upon the disputed document, then call upon the
defentants who wanted to rely on the document to pay the
Stamp duty and penalty and then, on payment of Stamp
duty and penalty, admit the document in evidence,
whether it is for collateral purpose or otherwise. But
however, the admissibility of the document can be decided
by framing necessary issues at the later stage while
hearing the case. Paragraph Nos.17 & 18 of the
Judgment are usefully extracted hereunder:-
"17.Therefore, it is clear that no document shall
be admitted in evidence if it is not properly stamped, and
if already not stamped, then Stamp duty should be paid
with penalty as prescribed by the authority. As far as the
present case is concerned, it is alleged that the plaintiff
himself admitted the existence of the Koorchit in his
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evidence. As rightly held by the trial Court unless the
document is marked, there will not be any opportunity for
the plaintiff to oppose and cross examine the defendants
on the execution of the said Koorchit. In the absence of
payment of the Stamp duty with penalty, the Trial Court
has committed an error in marking the document. Hence,
the order of the trial Court is liable to be modified.
18.In the result, this CRP is allowed in part and
the order of the trial Court is modified. The trial Court is
directed to ascertain the Stamp Duty and penalty payable
upon the disputed document, then call upon the
defendants who want to rely on the document, to pay the
Stamp duty and penalty, and then on payment of Stamp
duty and penalty, admit the document in evidence,
whether it is for collateral purpose or otherwise, and
admissibility of the same can be decided by framing
necessary issue at the later stage while hearing the case
as guided by the Apex Court in Bipin Shantilal Panchal
Vs. State of Gujarat and another 2001 (3) SCC 1.
Consequently, connected MP is also dismissed. No costs."
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22.As per Section 33 of the Indian Stamp Act, a
duty is cast upon the authority before whom, insufficiently
stamped document is produced, to impound the same. In
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the light of the Judgments of the Honourable Apex Court
and this Court, cited supra, the document not duly
stamped cannot be looked into for any purpose, including
for collateral purpose. In the case on hand, the
petitioners had raised objection well before the document
was permitted to be marked."
10.Likewise, in the case of Malaysian Airlines Systems BHD Vs.
STIC Travels (P) Ltd., [(2001) 1 SCC 451] and a portion of Judgment is
given below:-
"5.In my view, the point raised in the IA is not
tenable. In a case where the unstamped document (other
than bill of exchange) is produced as evidence, within
three months of execution, the stamp duty can be collected
without impounding and without penalty. If the document
is sought to be used as evidence beyond three months, the
abovesaid bar of three months shall not apply, and the
document can be impounded under Section 33 and stamp
duty and penalty are levied, even after expiry of three
months.
6.According to the decision of the Full Bench of
the High Court of Allahabad in Mohd. Amir Ahmad Khan
Vs. Dy. Commr. as affirmed by this Court in Govt. of U.P.
Vs. Raja Mohd. Amir Ahmad Khan and also according to
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the decision of the Delhi High Court in J.S.Bhalla Vs.
G.J.Bhawnani the procedure permitting submission of a
document within 3 months of its execution as in Section
18 is for collection of the stamp duty payable on the
document. If it is produced as evidence within three
months of execution, the stamp duty can be collected
under Section 18, read with Section 32, without
impounding the document under Section 33. But in case
where 3 months have already expired from the date of
execution of the document and later on the document is
produced before the court as evidence, it is permissible
for the court to impound the document and collect the
stamp duty and penalty and in such a situation, the time
limit of 3 months provided in Section 18 and clause (b) of
Section 32 is not attracted. Therefore, the point raised by
the respondent in the abovesaid IA cannot be accepted."
and in the case of Government of Andhra Pradesh and others Vs. P.Laxmi
Devi [(2008) 4 SCC 720]. Relevant paragraphs are hereunder:-
"15.Section 33(1) of the Stamp Act states:
33.Examination and impounding of
instruments-(1) Every person having by law or consent
of parties authority to receive evidence, and every person
in charge of a public office, except an officer of police,
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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."
16.A perusal of the said provision shows that
when a document is produced (or comes in the
performance of his functions) before a person who is
authorised to receive evidence and a person who is in
charge of a public office (except a police officer) before
whom any instrument chargeable with duty is produced
or comes in the performance of his functions, it is the
duty of such person before whom the said instrument is
produced to impound the document if it is not duly
stamped. The use of the word shall in Section 33(1)
shows that there is no discretion in the authority
mentioned in Section 33(1) to impound a document or
not to do so. In our opinion, the word shall in Section
33(1) does not mean may but means shall. In other
words, it is mandatory to impound a document produced
before him or which comes before him in the
performance of his functions. Hence the view taken by
the High Court that the document can be returned if the
party does not want to get it stamped is not correct."
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C.R.P.(P.D).Nos.2782 & 2783 of 2016
11.In the light of the above cited Judgments of the Hon'ble Apex
Court as well as this Court, the document which is not duly stamped cannot
be looked into for any purpose, including collateral purpose. The procedure
permitting submission of a document within three months of its execution as
contemplated under Section 18 of the Indian Stamp Act, read with clause (b)
of Section 32 of the Indian Stamp Act, which has to be produced as
evidence within three months of execution and the stamp duty can be
collected. But incase, where three months period was already expired form
the date of execution of document and later the document was produced
before the Court, which is permissible for the Court to impound the
document and collect the stamp duty and penalty and as such a situation, the
time limit provided under Section 18 (b) r/w 32 of the Indian Stamp Act,
will not attract. Therefore, admittedly, Ex.A1 is unstamped and unregistered
one. It is liable to be stamped and penalty should be levied. The Court
below misconstrued the fact that the respondent already filed a petition for
permission under Order 3 Rule 2 and the same was granted. When the
permission was duly granted, without challenging the said order, the
petitioner cannot file this petition. Further it is held that the validity and
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C.R.P.(P.D).Nos.2782 & 2783 of 2016
genuineness of the document can be decided only at the time of finality of
the case.
12.In view of the above, the impugned orders dated 12.07.2016
passed in I.A.Nos.13607 of 2015 and 532 of 2016 in O.S.No.6825 of 2012
on the file of VI Assistant City Civil Court, Chennai, are set aside.
Accordingly, these Civil Revision Petitions are allowed. No costs.
Consequently connected miscellaneous petition is closed.
23.02.2021
Index:Yes/No
Speaking Order: Yes/No
Jer
To
The VI Assistant City Civil Court, Chennai.
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C.R.P.(P.D).Nos.2782 & 2783 of 2016
G.K.ILANTHIRAIYAN.J,
Jer
C.R.P.(P.D).Nos.2782 & 2783 of 2016
and C.M.P.No.14207 of 2016
23.02.2021
https://www.mhc.tn.gov.in/judis/
