THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY
Civil Revision Petition No.1210 of 2011
10-08-2011
Rajoli Siva Rami Reddy, Kadapa District
Malepati Subba Rangiah and others
Counsel for the petitioner : Sri V.Sunil Babu
Counsel for the Respondents : Sri P.Veera Reddy
ORDER:
This revision is directed against the order dated 23.9.2010 passed in
I.A.No.1241 of 2008 in O.S.No.116 of 2007 on the file of the Senior Civil Judge,
Proddatur, whereby and whereunder, the learned Senior Civil Judge dismissed the
application filed by the petitioner-plaintiff seeking a direction to the 3rd
respondent to deposit 100 bags of paddy crop into the Court.
2. Background facts, in a nutshell, leading to filing of this revision by the
plaintiff in O.S.No.116 of 2007, are: -
The petitioner herein filed O.S.No.116 of 2007 on the file of the Senior
Civil Judge, Proddatur for specific performance of an agreement of sale dated
28.2.2007 and also for injunction. According to him, respondents 1 and 2 are
owners of the suit schedule property and they agreed to sell the property for
Rs.2,31,600/- and accordingly, executed an agreement of sale dated 28.2.2007.
The petitioner-plaintiff filed I.A.No.1241 of 2008 under Section 151 CPC seeking
direction to the 3rd respondent to deposit 100 bags of paddy. According to the
petitioner-plaintiff, respondent No.3 cut the standing crop in the suit schedule
property and taken away the entire crop and thereby, he interfered in the civil
disputes between the petitioner on one hand and respondents 1 and 2 on the other
hand. For better appreciation, I may refer paragraphs (3) and (10) of the
affidavit filed in support of I.A.No.1241 of 2008, which reads as hereunder:-
" 3) I submit that the respondents 1 and 2 came to me on 28-02-2007 offering
the schedule properties for sale stating that they have got the right, title and
possession over the schedule property under a registered partition deeds,
bearing No.50 and 58 of 1998 dated 14-10-1998, for which I have accepted
their offer to purchase the schedule properties, while the mediators namely (01)
Malkigari Bashamia and (02) Marthala Jayarami Reddy negotiated the issue and
fixed the sale consideration for Rs.80,000-00 per acre and Rs.02,31,600-00 for
entire extent of schedule properties, while myself and the respondents agreed
for the sale consideration fixed by the mediators, then I have paid the entire
sale consideration of Rs.02,31,600-00 to the both of the respondents on the
very same day. In turn, the respondents have received the sale consideration in
the presence of above said mediators and scribe namely B.P.Kullayappa Yadav and
executed an agreement of sale in my favour on the very same day acknowledging
the receipt of total sale consideration and delivered the schedule property
into my possession on the very same day, the respondents further agreed to
execute a regular registered sale deed in my favour at my risk and costs on
my demand as and when I demand. As such the part performance is over.
xxx xxxxx xxx
10. I submit that the crop of 100 bags of paddy raised and harvested by me
are with the custody of respondent No.3, the said crop has to be recovered
from the possession of respondent No.3 or its worth from the respondent No.3,
the value of the paddy of 100 bags is Rs.01,00,000/- for which the respondent
No.3 has to deposit the cash to the worth of the crop or paddy of 100 bags
with the Honourable Court, I am entitled to receive the said paddy of 100 bags
or cash of Rs.01,00,000-00, however the Honorable Court has to enquire the
matter and adjudicate whether I am entitled to receive the same or note.
Till then the paddy or amount has to be kept with the custody of Honorable
Court. Hence this petition."
Respondents 1 and 2 filed counter resisting the application. They denied
of execution of the agreement of sale dated 28.2.2007.
3. The learned Senior Civil Judge, on considering the material brought on
record and on hearing the counsel appearing for the parties, and placing
reliance on the decision of this Court in B.Ratnamala v. G.Rudramma1 and the
decision of the Supreme Court in Avinash Kumar Chauhan v. Vijay Krishna
Mishra2, proceeded to dismiss the petition on the ground that the agreement of
sale dated 28.2.2007 is not properly stamped, by order dated 28th September
2010. Paragraph (11) of the order passed in I.A.No.1241 of 2008 need to be
noted and it is thus:-
" When we consider the case of the petitioner in the light of the above law
stated by the Hon'ble Apex Court and also the Hon'ble High Court of Andhra
Pradaesh, the petitioner cannot claim any relief in this case, since the suit
agreement of sale dt.28.2.07 as evidenced by its recitals about the delivery of
possession of the suit schedule property to the petitioner which was agreed to
be sold by the respondents 1 and 2. Therefore the said agreement of sale
dt.28.2.07 is inadmissible in evidence and it cannot be looked into for any
purpose unless the petitioner pays stamp duty and penalty. It is immaterial
for this Court about the prima facie case and balance of convenience in favour
of the petitioner unless he pays stamp duty and penalty on the said agreement of
sale".
Hence this revision.
4. Notice to respondents came to be ordered on 11.4.2011. The respondents
entered appearance through a counsel.
5. Learned counsel appearing for the petitioner submits that the relief
sought for is against the 3rd respondent and the 3rd respondent is not a party
to the agreement of sale and therefore, the application filed by the petitioner
seeking a direction to the 3rd respondent to deposit 100 bags of paddy or its
equivalent value is maintainable. The claim of the petitioner-plaintiff is that
he purchased the suit schedule property under an agreement of sale dated
28.2.2007 from respondents 1 and 2.
6. Respondents 1 and 2 have denied execution of the agreement of sale in the
counter and stated that until and unless the suit agreement is marked, there is
no material to substantiate the case of the petitioner-plaintiff regarding his
possession over the suit schedule property.
7. A Division Bench of this Court in B. Ratnamala v. G.Rudramma (1 supra) has
held that where an agreement of sale contains a specific recital or indicating
delivery of possession, it is liable for stamp duty as a sale, under Explanation
1 to Article 47-A of the Indian Stamp Act. The apex Court in Avinash Kumar
Chauhan's case (2nd supra), held that the unregistered deed of sale was an
instrument which required payment of the stamp duty applicable to a deed of
conveyance. The court, therefore, was empowered to pas an order in terms of
Section 35. It was further held that--
" It is now well settled that there is no prohibition under Section 49 of
the Registration Act, to receive an unregistered document in evidence for
collateral purpose. But the document so tendered should be duly stamped or
should comply with the requirements of section 35 of the Stamp Act, if not
stamped, as a document cannot be received in evidence even for collateral
purpose unless it is duly stamped or duty and penalty are paid under Section
35 of the Stamp Act. Section 35 of the Stamp Act mandates that an instrument
chargeable with duty should be stamped so as to make it admissible in evidence.
Proviso A to Section 35 of the Stamp Act enables a document to be received in
evidence on payment of stamp duty and penalty if the document is chargeable, but
not stamped or on payment of deficit duty and penalty if it is insufficiently
stamped. The bar against the admissibility of an instrument which is
chargeable with stamp duty and is not stamped is of course absolute
whatever by the nature of the purpose, be it for main or collateral purpose,
unless the requirements of proviso (A) to Section 35 are complied with. It
follows that if the requirements of proviso (A) to Section 35 are satisfied,
then the document which is chargeable with duty, but not stamped, can be
received in evidence".
8. Indisputably, the agreement contains a recital regarding delivery of
possession. The petitioner-plaintiff claims that he has been put in possession
of the suit property under an agreement of sale dated 28.2.2007 executed by
respondents 1 and 2. Until and unless the petitioner pays stamp duty and
penalty on the agreement of sale, it cannot be looked into. The trial Court
is, therefore, justified in dismissing the application. However, the
petitioner is at liberty to move an application for impounding the agreement of
sale. After payment of the stamp duty and penalty, the petitioner is at liberty
to make a fresh application seeking the relief as sought for in I.A.No.1241 of
2008, in which event, such an application has to be considered uninfluenced by
any of the observations made earlier.
9. In that view of the matter, I find no error in the order impugned in the
revision warranting interference of this Court in exercise of powers under
Article 227 of the Constitution of India and accordingly, the revision is
dismissed. No order as to costs.
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B.SESHASAYANA REDDY, J
