Dismissed

Bhagwan Kashinath Terkar v. Maruti Ganpat Mule

Bombay HC5 Feb 2013WP/10589/2012

Case brief

AI extract

What is this about?

This writ petition challenged the rejection of an application to impound an agreement of sale for insufficient stamp duty. The High Court held that once the document was admitted in evidence without objection, no further inquiry into stamp duty sufficiency could be made under Section 58 of the Bombay Stamp Act and dismissed the petition.

What did the court decide?

The application filed by the petitioner to impound the document was rejected and the Writ Petition was dismissed with no costs.

Bhagwan Kashinath Terkar Vs Maruti Ganpat Mule — Writ and Judicial Review | Bombay HC (2013)

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W.P.No.10589/12

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 FARAD CONTINUATION SHEET NO.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 APPELLATE SIDE, BENCH AT AURANGABAD

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 WRIT PETITION NO.10589 OF 2012

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Office Notes, Office
Memoranda of Coram,
appearances, Court's
orders or directions
andRegistrar's
orders.

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Court's or Judge's orders

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Mr.Shaikh Shoyab, advocate for the petitioner.
Mr.S.S.Choudhari, advocate for Respondent.

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 CORAM : S.V.GANGAPURWALA,J.

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 Date : 05.02.2013.

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PER COURT :

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Heard.

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The application filed by the petitioner to impound the document i.e. agreement of sale is rejected.

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Mr.Shaikh Shoyab, learned counsel for the petitioner submits that the objection with regard to the insufficiency of the stamp can be raised at any stage of the case, in view of Section 58 of the Bombay Stamp Act. According to the learned counsel, the document agreement of sale is a conveyance within the meaning of Explanation to Article 25 of the Bombay Stamp Act. The document recites about the delivery of possession prior to the execution of document. In light of that the said document squarely comes within the ambit and purview of Explanation to Article 25 of the Bombay Stamp Act and full stamp duty as that of the

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W.P.No.10589/12

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conveyance is required.

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The learned counsel further contends that in view of Section 34 of the Bombay Stamp Act, the said document is inadmissible in evidence and can be made admissible only by directing the party to pay the deficit stamp duty with the penalty. The trial Court on wrong premise has rejected the application. It is immaterial as to who is the executant of the document. According to the learned counsel, it was also erroneous on the part of the trial Court to observe that deficit stamp duty and penalty can be recovered at any stage.

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Mr.Choudhari, learned counsel for the Respondent submits that the trial Court has given proper reasons. Even no objection was raised by the petitioner prior to or at the time when the document was admitted in evidence. According to the learned counsel, no error is committed by the trial Court in rejecting the application. The document i.e. agreement of sale read as a whole would not come within the ambit and purview of Explanation to Article 25 of the Bombay Stamp Act. The document recites about the delivery of possession prior to the execution of agreement.

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The reason given by the trial Court that the defendant himself is the executant and he has to bear the expenses of deficit stamp duty is totally erroneous. It is the person who wants the document to be admitted in evidence, has to bear the deficit stamp

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W.P.No.10589/12

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duty and the penalty. The said observation is wholly untenable. Even the observation of the learned Judge that Civil Court has discretion to direct the party for impounding document and penalty can be recovered at any stage of the case is also not in consonance with the provision of the statute. The trial Court has lost sight of Section 35 of the Bombay Stamp Act.

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It appears that when the document was admitted in evidence and marked Exh.31, at that time, objection was not raised by the petitioner about the insufficiency of stamp. The Apex Court in a case of "Javer Chand and others Vs. Pukhraj Surana" reported in AIR 1961 Supreme Court 1655, has held that once the document is admitted in evidence and marked exhibit, the question about insufficiency of the stamp can not be gone into.

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In view of the aforesaid proposition, I am not inclined to entertain the Writ Petition. The Writ Petition as such is dismissed. No costs.

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(S.V.GANGAPURWALA,J.)

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Dt.05.02.2013. asp/office/wp10589.12

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W.P.No.10589/12

Bhagwan Kashinath Terkar v. Maruti Ganpat Mule

Case brief

What is this about?

What did the court decide?

Bhagwan Kashinath Terkar v. Maruti Ganpat Mule

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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