C. Veerathevan vs N. Jayaraj and Others

K.K. Sasidharan, J.—The petitioner produced a document before the Executing Court in E.A. No. 68 of 2004. The document was marked as Ex.P.2. Subsequently, the petitioner was directed to pay the deficit stamp duty with penalty. The petitioner filed E.A. No. 260 of 2005 to refer Ex.P.2 to the concerned authority under the Indian Stamp Act. The application was rejected by the learned Trial Judge. The order dated 08 September, 2006 in E.A. No. 260 of 2005, is challenged in this Civil Revision Petition.

The learned counsel for the petitioner contended that the Executing Court marked the document without protest. The successor Judge was, therefore, not correct in re-opening the matter and directing the petitioner to pay the deficit stamp duty with penalty. The learned counsel contended that the petitioner has taken a legally acceptable method to refer the document to the competent authority under the Indian Stamp Act. The learned Trial Judge, without any basis, dismissed the said application and as such, the order requires interference.

The learned counsel for the first respondent justified the impugned order. According to the learned counsel, the petitioner was rightly directed by the Trial Court to pay the stamp duty and penalty. The learned counsel contended that in view of marking the document, there is no question of reference to the Collector to determine the stamp duty payable on the document.

The first respondent filed a suit in O.S. No. 94 of 2001 against the second respondent before the Sub Court, Aruppukkottai, to recover a sum of Rs.72,066/- on the strength of a promissory note. The suit was decreed ex parte on 16 November, 2001. The first respondent filed E.P. No. 22 of 2002, to execute the decree by attachment and sale of the property in Survey No. 32/5, Kattukuthagai, Karisalkulam Village, Kariapatti Taluk, Virudhunagar District. The property was attached by the Executing Court and it was brought to sale. The petitioner, alleging a subsisting mortgage, filed an application in E.A. No. 68 of 2004 before the Trial Court, under Order 21 Rule 58 of the Code of Civil Procedure, 1908. During the currency of the Execution Application, the petitioner marked Ex.P.1 - usufructuory mortgage deed on his side. The petitioner produced a document dated 01.05.2001 stated to be a tenancy agreement. It was marked as Ex.P.2. The successor Judge took up the matter for arguments on 07.10.2005. It was found that proper stamp duty was not paid. The petitioner was directed to pay stamp duty along with penalty to the tune of Rs.27,710/-. The petitioner immediately filed an application in E.A.260 of 2005, for referring Ex.P.2 to the concerned authority under the Indian Stamp Act. The Executing Court was of the view that there was an undertaking given by the learned counsel for the revision petitioner earlier that deficit stamp duty and penalty would be paid and the document was marked only pursuant to the said undertaking. The Executing Court, by referring the undertaking, dismissed the application.

I have verified the original records in E.P. No. 22 of 2002. There is no such undertaking given by the learned counsel for the petitioner in E.A. No. 68 of 2004 and E.A. No. 260 of 2005 before the Court below. Therefore, the observation made by the learned Executing Judge to the effect that the counsel for the petitioner has given an undertaking appears to be an incorrect observation.

The further question is as to whether the learned Trial Judge was correct in directing the petitioner to pay the deficit stamp duty and penalty.

The learned counsel for the petitioner placed reliance on two judgments of the Supreme Court in Javer Chand and Others Vs. Pukhraj Surana, AIR 1961 SC 1655 : (1962) 2 SCR 333 and Shyamal Kumar Roy Vs. Sushil Kumar Agarwal, AIR 2007 SC 637 : AIR 2007 SC 234 : (2006) 9 JT 483 : (2006) 11 SCALE 159 : (2006) 11 SCC 331 : (2006) 8 SCR 47 Supp . The Supreme Court in those two decisions held that in case the document is admitted in evidence without objection, a party to a litigation, at a later point of time, cannot be permitted to contend that the document is inadmissible in evidence.

The facts of the present case is entirely different. The Court marked the document without verifying the nature of the document. The Court, at a later point of time, found that the document was unregistered and it was not properly stamped. The question of consent or no objection does not arise in a case of this nature. Even if the first respondent has given a consent to mark the document, the same is not binding on the Court. It is the duty of the Court to see that proper stamp duty is paid. The Trial Court assessed the amount payable by the petitioner. In case the amount is not paid, document cannot be received in evidence, notwithstanding its marking earlier. I am, therefore, of the view that the learned Executing Judge was perfectly correct in rejecting the application filed by the petitioner in E.A. No. 260 of 2005.

The petitioner is given time till 23 April, 2015, to remit the deficit stamp duty and penalty as indicated by the learned Executing Judge. In case the said amount is paid, the document in Ex.P.2 would be received in evidence. In case the amount is not paid within the prescribed period, the matter would be decided without reference to Ex.P.2.

The Civil Revision Petition is disposed of with the above direction. No costs. Consequently, the connected miscellaneous petition is closed.