Dismissed

SMt. Mandavilli Santha Kumari v. Nallamilli Ramakrishna Reddy

Telangana HC21 Jul 2011CRP/4906/2010

Case brief

AI extract

What is this about?

The High Court of Andhra Pradesh dismissed a criminal revision petition challenging the dismissal of an application to send a stamped sale agreement to the District Registrar for impounding. The court held that the District Registrar's certificate regarding sufficiency of stamp duty is conclusive evidence under the Stamp Act and cannot be revisited.

What did the court decide?

Civil revision petition dismissed; interim stay vacated; no order as to costs.

SMt. Mandavilli Santha Kumari Vs… — Contract and Commercial Disputes | Telangana HC (2011)

¶1

IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH: HYDERABAD

¶2

WEDNESDAY, THE TWENTY FIRST (21^ST ) DAY OF JULY, TWO THOUSAND AND ELEVEN

¶3

Present:

¶4

HON’BLE SRI JUSTICE G.V.SEETHAPATHY

¶5

C.R.P.No.4906 OF 2010

¶6

Between:

¶7

Mana Villi Santha Kumari and another

¶8

… Petitioners

¶9

And:

¶10

Mandavilli Venkata Raju

¶11

… Respondent

¶12

HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.4906 OF 2010

¶13

ORDER:

¶14

This civil revision petition is directed against the order dated 27.09.2010 in I.A.No.341 of 2010 in O.S.No.362 of 2004, on the file of the IX-Additional District Judge (F.T.C), Visakhapatnam, wherein the said application filed by the petitioners herein, the defendants, under Section 33 of the Indian Stamp Act, seeking to send the disputed document to the District Registrar, Visakhapatnam, for impounding, was dismissed.

¶15

2. Heard the learned counsel for the petitioners/defendants and the learned counsel for the respondent/plaintiff. Perused the record.

¶16

3. The respondent herein filed the suit for specific

¶17

performance of agreement of sale dated 28.03.1992 alleged to have been executed by the petitioners/defendants. A perusal of the copy of the agreement would disclose that the entire sale consideration was paid and received and so the possession of the suit property was delivered to the purchasers. The petitioners/defendants would contend that the suit agreement, though styled as an agreement is, in effect, a regular conveyance deed as it contains all the recitals that go with a sale

¶18

deed, except that the registration is deferred to a future date.

¶19

The petitioners/defendants contend that the document is liable for stamp duty and penalty as a conveyance under Article 47-A of Schedule 1-A of the Stamp Act and unless and until the stamp duty and penalty are paid, the document is inadmissible in evidence.

¶20

The value of the property is mentioned as Rs.22 lakhs in the agreement of sale and according to the petitioners/defendants, the total stamp duty payable is Rs.1,76,000/-. Previously, the respondent/ plaintiff filed I.A.No.336 of 2007 seeking impounding of the document. Accordingly, the suit document was sent to the District Registrar for the purpose of impounding and the District Registrar by his letter dated 15.02.2010 gave opinion to the effect that the document i.e., sale agreement dated 28.03.1992 bears the stamp duty of Rs.100/- and the same is sufficient as per Article 6(d) of Schedule I-A of the Indian Stamp Act. Thereafter, the petitioners/defendants filed the present application I.A.No.341 of 2010 under Section 37 of the Indian Stamp Act with a request to send the document to the District Registrar for the purpose of

¶21

collecting the stamp duty and penalty. The respondent/plaintiff filed a counter opposing the said application. The trial Court, by the impugned order, dismissed the said application. Aggrieved by the same, the defendants filed the present revision.

¶22

4. Section 37 of the Indian Stamp Act under which the present application is purported to have been filed deals with admission of the improperly stamped instruments and states that the State Government make rules providing that, where an instrument bears a stamp of sufficient amount but of improper description, it may, on payment of the duty with which it is chargeable, be certified to be duly stamped, and any instrument so certified shall be deemed to have been duly stamped as from the date of its execution. In the present case, the document was already sent to the District Registrar which is admittedly authorized to discharge the functions of a Collector under the Indian Stamp Act by virtue of a notification issued under Section 2(9) of the Stamp Act, at the instance of the plaintiff who filed I.A.No.336 of 2007 for the said purpose under Section 33 of the Act. The said District Registrar certified that the suit agreement of sale is sufficiently stamped. Section 40(1) of the Act states that when the Collector impounds any instrument under Section 33, or receives any instrument, sent to him under Section 38, and if he is of opinion that such instrument is duly stamped or is not chargeable with duty, he shall certify by endorsement thereon that it is duly stamped, or that it is not so chargeable, as the case may be and if he is of opinion that such instrument is chargeable with duty and is not duly stamped, he shall require the payment of

¶23

the proper duty or the amount required to make up the same, together with a penalty. Sub-section (2) of Section 40 states that every certificate under clause (a) of subsection (1) shall, for the purpose of the Act, be conclusive evidence of the matter stated therein. In the present case, the Collector i.e., District Registrar has already certified that the suit agreement of sale is duly stamped. The said certificate attains conclusiveness by virtue of sub-section (2) of Section 40. It is, therefore, not open to the petitioners/defendants to contend that the opinion expressed by the District Registrar is vitiated due to nonapplication of mind or is incorrect and, therefore, the document shall be once again sent to him for the purpose of impounding.

¶24

5. The learned counsel for the petitioners relies upon a decision in AVINASH KUMAR CHAUHAN V. VIJAY KRISHNA MISHR A^[1] , wherein the Apex Court held as follows:

¶25

“As adequate stamp duty admittedly was not paid, the court was empowered to pass an order in terms of Section 35 of the Stamp Act, 1899 (the Act). The unregistered deed of sale is an instrument which requires payment of the stamp duty applicable to a deed of conveyance. The court being an authority to receive a document in evidence is bound to give effect thereto. Section 33 of the Act casts a statutory obligation on all the authorities to impound a document. By reason of the statutory interdict, no transfer at all is permissible. Even transfer of possession is also not permissible.”

¶26

The principle laid down in the above decision is not disputed. The Court being an authority to receive the document in evidence is bound to give effect to the provisions of Sections 33 and 35 of the Stamp Act. In the

¶27

present case, the plaintiff had already sought reference to the stamp collector by filing an application I.A.No.336 of 2007 under Section 33 of the Act and the certificate issued by the Collector has attained finality.

¶28

6. This Court in G.RAMESH V. REVENUE DIVISIONAL OFFICE R^[2] has laid down certain guidelines to the Presiding Officers of the Court to be followed while dealing with the question of impounding of documents. It was stated inter alia therein that if

¶29

the party requests the Court to send the document to the Collector

¶30

for collection of stamp duty and penalty, the Court may consider

¶31

such request and send the document to the Collector. In the present case, the suit agreement of sale was executed on 28.03.1992.

¶32

Article 47-A was inserted by A.P. Act 17 of 1986 w.e.f 16.08.1986. Explanation I to Article 47A states that an agreement to sell followed by or evidencing delivery of possession of the property agreed to be sold shall be chargeable as a ‘sale’ under that article and the instrument of sale in pursuance of such agreement subsequently executed shall be chargeable with a duty of rupees five. Subsequently, the said explanation was substituted by Section 2(d) Indian Stamp (A.P) Amendment Act 21 of 1995 w.e.f 01.04.1995 by reiterating that an agreement to sell followed by or evidencing delivery of possession of the property agreed to be sold shall be chargeable as a ‘sale’ under this article, but, however, adding a proviso to the effect that where subsequently a sale deed is executed in pursuance of an

¶33

agreement of sale, the stamp duty, if any, already paid or recovered on the agreement of sale shall be adjusted towards the total duty leviable on the sale deed. The learned counsel for the respondent/plaintiff would contend that since the amendment came into effect from 01.04.1995, the same is not applicable to the suit document, which was executed in the year 1992. It is to be noted that the amendment brought about by Act 21 of 1995 w.e.f 01.04.1995 was only regarding the mode of adjustment of the stamp duty already paid on the agreement of sale against the total stamp duty leviable on the sale deed. Explanation I was introduced in 1986 itself by Amendment Act 17 of 1986 to the effect that an agreement to sell followed by or evidencing delivery of possession of the property agreed to be sold shall be chargeable as a ‘sale’. The suit agreement of sale dated 28.03.1992 was subsequent to the amendment coming into force under the A.P. Act 17 of 1986. However, in the present case, the certificate issued by the District Registrar pursuant to the reference of the document under Section 33, has acquired finality and conclusiveness under sub-section (2) of Section 40. It is not open for the petitioners/defendants to once again request the court to send

¶34

the document to the collector for the purpose of impounding.

¶35

The impugned order, dismissing the application filed by the petitioners/defendants does not call for any interference.

¶36

7. In the result, the civil revision petition is dismissed. Interim stay granted earlier stands vacated. There shall be

¶37

no order as to costs.

¶38

G.V.SEETHAPATHY, J

¶39

21^st July, 2011 Lrkm.