Punjab-Haryana High Court
Sucha Singh Sidhu @ Amit Sidhu vs Chamkaur Singh on 3 April, 2024
Neutral Citation No:=2024:PHHC:044839
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR-519-2018 (O&M)
Pronounced on:- 03.04.2024
Sucha Singh Sidhu @ Amit Sidhu
... Petitioner
Versus
Chamkaur Singh
... Respondent
CORAM: HON'BLE MRS. JUSTICE RITU TAGORE
Present :- Mr. Rajiv Joshi, Advocate
for the petitioner.
Mr. G.S. Brar, Advocate
for the respondent.
RITU TAGORE, J.
1. Challenge in present petition is to the order dated 16.01.2018
passed by learned Additional Civil Judge (Senior Division), Phillaur, in Civil
Suit No.2048 of 2013 titled 'Sucha Singh Sidhu @ Amit Sidhu Vs. Chamkaur
Singh' whereby an application (Annexure P-6) moved by petitioner (plaintiff
before the trial Court) under the Indian Stamp Act, 1899 (hereinafter referred
to as 'the Act') for impounding the original Power of Attorney dated
20.08.2009 Ex.PZ and payment of stamp duty and penalty thereof, was
dismissed.
2. Shorn of unnecessary details, Sucha Singh-petitioner instituted
a civil suit through his duly appointed Power of Attorney Smt. Harjinder
Kaur, his mother against the respondent (defendant before the trial Court),
for possession and permanent injunction as owner of the suit property
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measuring 2 kanals marked as 'ABCD' in the site plan and fully described in
head note of the plaint, inter alia pleading that Jarnail Singh, predecessor-in
interest of the petitioner was in settled possession of a suit property a'taur' as
shown in site plan attached with the plaint, who had purchased from Punjab
Government and had become owner of the same. It is pleaded that Jarnail
Singh executed a Will dated 05.03.2007 in favour of the petitioner and as
such he became owner in possession of the disputed property. It is further
alleged by the petitioner that in his absence when he was in a foreign
country, the respondent forcibly entered on the part of the suit property and
made illegal construction of a house and rooms as detailed in the site plan.
He requested the respondent to hand over the possession of the suit property
but he did not accede to his request which necessitated him to file the present
suit.
3. Respondent-defendant filed written statement and resisted the
suit of the petitioner stating that Jarnail Singh, father of the petitioner sold
the suit property to him vide agreement dated 05.11.2003 after receiving full
sale consideration and also executed Will dated 30.03.2005 and General
Power of Attorney dated 31.03.2005 in his favour with his free will and
consent, and thereafter, respondent entered into an agreement for
construction of a house with Jaswinder Singh, the contractor and Jarnail
Singh also attested the said agreement and participated in his home warming
ceremony. The respondent therefore pleaded that Jarnail Singh had left with
no right, title in the suit property. The execution of Will dated 05.03.2007 by
Jarnail Singh in favour of the petitioner is forged and fictitious document,
having no effect on his right and interest in the suit property. Besides above,
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respondent also pleaded that suit of the plaintiff is time barred, and is also hit
by the principle of constructive res judicata. Further, the power of attorney in
favour of Harjinder Kaur is not legal and valid as it is not duly attested and
properly stamped as required under the Act and is inadmissible in the
evidence.
4. As evident from the paper book, the learned trial Court framed
the issues from the rival pleadings of the parties and asked them to lead
evidence on framed issues. During course of the evidence, the power of
attorney holder Harjinder Kaur, PW-1 tendered copy of the power of attorney
as P-1 and the counsel for the petitioner in his statement dated 13.07.2016
tendered the original power of attorney as Annexure PZ. The respondent
objected the admissibility of the original power of attorney on the ground of
mode of proof and further no opportunity was given to the defendant to
cross-examine the witness concerning the power of attorney Ex.PZ.
Thereafter, as apparent from the paper-book, the petitioner moved an
application Annexure P-6 for impounding the original power of attorney
dated 20.08.2009 Ex. PZ as per the provisions of Indian Stamp Act and
sought the permission to make good the deficiency in the stamp duty if found
insufficiently stamped and payment of penalty thereof, if required, as per
law.
5. Respondent filed reply (Annexure P-7), opposing the application
on the ground of its maintainability, having filed beyond three months of its
execution by taking recourse to the provisions of Section 18 of the Act.
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6. The learned trial Court vide the impugned order dated
16.01.2018 dismissed the application by observing that Section 18 of the Act
provides three months time for stamping the document and application has
been filed after the gap of seven years despite the objections raised by the
defendant with respect to it being improperly stamped.
7. Learned counsel for the petitioner contended that learned trial
Court erred in dismissing the application and contended that in a case where
unstamped document (other than bill of exchange) is produced as evidence,
within three months of execution, stamp duty can be collected without
impounding and without penalty. If the document is sought to be used as
evidence beyond three months the above said bar of three months shall not
apply and the document can be impounded under Section 33 of the Act and
stamp duty and penalty are levelled even after expiry of three months.
8. Learned counsel also stated that Section 35 of the Act empowers
Court to direct party who wants document insufficiently stamped to be acted
upon, to pay stamp duty or deficient portion together with penalty, for
enabling document to be admitted in evidence.
9. Learned counsel submitted that the petitioner is ready to pay the
requisite stamp duty and penalty, if any, and it is the petitioner, who had
moved an application (Annexure P-6) in this regard, however the learned
trial Court erred in dismissing the application simply taking the ground of
delay. Learned counsel however submitted that it is settled position of law
that there is no question of limitation as far as provisions of Indian Stamp
Act are concerned. Moreover, the stamp duty can be made good at any time
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and at any stage of the suit. Further, no party should be deprived of the
justice on the ground of technicalities and more so, when the law provides a
remedy to ameliorate the same. Learned counsel thus contended that
impugned order be set aside and application be allowed. In support of his
arguments, learned counsel has referred to judgments of Hon'ble the
Supreme Court of India in Peteti Subba Rao Vs. Anumala S. Narendra,
2002 (10) SCC 427 and Malaysian Airlines Systems BHD vs. Stic Travels
(P) Ltd., (2001) 1 SCC 451and Co-ordinate Bench of this Court in Bhim
Singh Vs. Smt. Urmila Rani, 2007 (10) R.C.R. (Civil) 440.
10. Contra learned counsel for the respondent supported the
impugned order stating that learned trial Court has rightly dismissed the
application having filed beyond the three months against the mandate of
Section 18 of the Indian Stamps Act, 1899. A prayer is thus made that the
revision is devoid of merits and should be dismissed.
11. I have heard learned counsel for the parties and gone through the
paper book.
12. The present matter relates to a question of impounding a power
of attorney (Ex.PZ) executed outside India and presented in India for use in
the proceedings of a civil suit pending before the learned trial Court as
detailed above. By way of application (Annexure P-6), the petitioner pleaded
for impounding the original power of attorney deed dated 20.08.2009 (Ex.
PZ) executed by him in U.K and prayed for making good the deficiency in
the stamp duty on the power of attorney and payment of penalty thereof, if
found to be insufficiently stamped.
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13. At this stage, it would be relevant to go through some of the
provisions of Indian Stamp Act, 1899. Sections 3, 18, 33 and 35 of the Act
deals with the instruments which are chargeable with duty which are
extracted below:-
"3. Instruments chargeable with duty. --Subject to the provisions of this
Act and the exemptions contained in Schedule I, the following instruments
shall be chargeable with duty of the amount indicated in that Schedule as
the proper duty therefore, respectively, that is to say--
(a) every instrument mentioned in that Schedule which, not having
been previously executed by any person, is executed in [India] on
or after the first day of July, 1899;
(b) every bill of exchange [payable otherwise than on demand] or
promissory note drawn or made out of [India] on or after that day
and accepted or paid, or presented for acceptance or payment, or
endorsed, transferred or otherwise negotiated, in [India]; and
(c) every instrument (other than a bill of exchange, or promissory
note) mentioned in that Schedule, which, not having been
previously executed by any person, is executed out of [India] on or
after that day relates to any property situate, or to any matter or
thing done or to be done, in [India] and is received in [India]:
Provided that no duty shall be chargeable in respect of--
(1) any instrument executed by, or on behalf of, or in favour
of, the Government in cases where, but for this exemption, the
Government would be liable to pay the duty chargeable in respect
of such instrument;
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(2) any instrument for the sale, transfer or other disposition, either
absolutely or by way of mortgage or otherwise, of any ship or
vessel, or any part, interest, share or property of or in any ship or
vessel, registered under the Merchant Shipping Act 1894, or under
Act XIX of 1938 or the Indian Registration of Ships Act, 1841, (X of
1841) as amended by subsequent Acts.
(3) Any instrument executed, by, or, on behalf of, or, in favour of,
the Developer, or Unit or in connection with the carrying out of
purposes of the Special Economic Zone.
18. Instruments other than bills and notes executed out of India.--(1)
Every instrument chargeable with duty executed only out of [India], and
not being a bill of exchange or promissory note, may be stamped within
three months after it has been first received in [India].
(2) Where any such instrument cannot, with reference to the
description of stamp prescribed therefor, be duly stamped by a private
person, it may be taken within the said period of three months to the
Collector, who shall stamp the same, in such manner as the [State
Government] may by rule prescribe, with a stamp of such value as the
person so taking such instrument may require and pay for.
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 pubic 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.
(2) For that purpose every such person shall examine every instrument so
chargeable and so produced or coming before him, in order to ascertain
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whether it is stamped with a stamp of the value and description required by
the law in force in [India] when such instrument was executed or first
executed:
Provided that--
(a) nothing herein contained shall be deemed to
require any Magistrate or Judge of a Criminal Court to
examine or impound, if he does not think fit so to do, any
instrument coming before him in the course of any
proceeding other than a proceeding under Chapter XII or
Chapter XXXVI of the Code of Criminal Procedure, 1898 (V
of 1998);
(b) in the case of a Judge of a High Court, the duty
of examining and impounding any instrument under this
section may be delegated to such officer as the Court
appoints in this behalf.
(3) For the purposes of this section, in cases of doubt, --
(a) [the [State Government]] may determine what offices
shall be deemed to be public offices; and
(b) [the [State Government]] may determine who shall be
deemed to be persons in charge of public offices.
35. Instruments not duly stamped inadmissible in evidence, etc.-
No instrument chargeable with duty shall be admitted in evidence
for any purpose by any person having by law or consent of parties
authority to receive evidence, or shall be acted upon, registered or
authenticated by any such person or by any public officer, unless
such instrument is duly stamped :
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Provided that--
(a) any such instrument [shall], be admitted in evidence on
payment of the duty with which the same is chargeable, or, in the
case of any instrument insufficiently stamped, of the amount
required to make up such 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 such duty or portion;
(b) where any person from whom a stamped receipt could have
been demanded, has given an unstamped receipt and such receipt, if
stamped, would be admissible in evidence against him, then such
receipt shall be admitted in evidence against him, then such receipt
shall be admitted in evidence against him on payment of a penalty
of one rupee by the person tendering it;
(c) Where a contract or agreement of any kind is effected by
correspondence consisting of two or more letters and any one of the
letters bears the proper stamp, the contract or agreement shall be
deemed to be duly stamped;
(d) nothing herein contained shall prevent the admission of any
instrument in evidence in any proceeding in a Criminal Court,
other than a proceeding under Chapter XII or Chapter XXXVI of
the Code of Criminal Procedure 1898 (V of 1898);
(e) nothing herein contained shall prevent the admission of any
instrument in any Court when such instrument has been executed by
or on behalf of the Government, or where it bears the certificate of
the Collector as provided by section 32 or any other provision of
this Act."
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14. Section 35 of the Act empowers the trial Court to direct the
party who wants the documents to be acted upon, to pay stamp duty or the
deficient portion together with penalty as detailed therein. This is for the
purpose of enabling the document to be admitted in evidence. In such a
situation the document would be admitted only on the payment of aforesaid
amount.
15. In Malaysian Airlines Systems BHD (supra) a question had
cropped up whether a document in sufficiently stamped, is sought to be used
in evidence, can be allowed to be levied the stamp duty and penalty even
after expiry of three months. Hon'ble the Supreme Court observed as under:-
"5. In my view, the point raised in the I.A. 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 above said 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 Mohammad Amir Ahmad Khan v. Deputy Commissioner
and others AIR 1956 Allahabad 453, as affirmed by this Court
in Government of Uttar Pradesh and others v. Raja Mohammad Amir
Ahmad Khan, AIR 1961 Supreme Court 787 and also according to the
decision of the Delhi High Court in J.S. Bhalla v. G.J. Bhawanani,
1983(1) RCR (Rent) 327 (Delhi) : 1983 (Vol. 23) DLT 125, 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
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for the Court to impound document and collect the stamp duty and penalty
and in such a situation, the time-limit of 3 months provided in
Section 18 and the clause (b) of Section 32 are not attracted. Therefore, the
point raised by the respondent in the above said I.A. cannot be accepted."
16. In view of the provisions and the observation made by Hon'ble
the Supreme Court in Malaysian Airlines Systems BHD (supra), it is clear
that a document which is sought to be used as evidence beyond three months
can be impounded under Section 33 and Stamp duty and penalty is levied
even after the expiry of three months as provided under section 35 of the Act.
In such a case the time limit of three months provided under Section 18 and
clause (b) of Section 32 is not attracted.
17. In view of the above, learned trial Court thus erred in law in
dismissing the application moved by the petitioner. Accordingly the
impugned order dated 16.01.2018 is set aside. The petitioner is permitted to
pay the stamp duty and penalty, if any, required as assessed by the trial
Court, on the document (Ex.PZ) as requested by him as per law.
18. Accordingly, revision petition is allowed in above terms.
19. Pending applications, if any, also stands disposed of accordingly.
( RITU TAGORE)
03.04.2024 JUDGE
Rimpal
Whether reasoned / speaking? Yes / No
Whether reportable? Yes / No
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