EFCALON TIE UP PRIVATE LIMITED vs WEST BENGAL FINANCIAL CORPORATION

,,,,

The Court : In this suit by Efcalon Tie Up Pvt. Ltd., during examination-in-chief when the learned Counsel appearing for the plaintiff attempted to",,,,

tender a document titled as Memorandum of Understanding (hereinafter referred to as the ‘said MOU’) drawn on Rs.500/- non-judicial stamp,,,,

paper, and prayed for marking of the same as an exhibit, learned Counsel for the defendant raised vehement objection as to the admissibility of the",,,,

said MOU into evidence. Mr. Jishnu Chowdhury, learned Counsel appearing for the West Bengal Financial Corporation, sole defendant in this suit,",,,,

objected to the admissibility of the document on two grounds,",,,,

1) The document is insufficiently stamped within the requirement of Section 35 of the Indian Stamp Act, 1899.",,,,

2) The document is registrable as per Section 17 of the Indian Registration Act, 1908.",,,,

He submits that such a document cannot be admitted into evidence. Because of such objection this Court recorded an order on 20th November, 2017",,,,

to the extent that after disposal of such objection the document may or may not be admitted into evidence and only thereafter further examination will,,,,

proceed. Before deciding this question as to the admissibility of the document, namely, the said MOU, a little background of the said document, coming",,,,

into existence, is required to be elucidated. The plaintiff in this suit has made a prayer for a decree for an amount of Rs.2,64,67,965.58/- (Rupees Two",,,,

Crore Sixty Four Lakh Sixty Seven Thousand Nine Hundred Sixty Five and Fifty Eight Paisa) only, against the defendant in terms of paragraph 23 of",,,,

the plaint.,,,,

Plaintiff has also prayed for interim interest, interest upon judgment and other consequential reliefs. Plaintiff’s claim is based on the said MOU. It",,,,

has been stated in paragraph 19 of the plaint that in terms of the said MOU, the plaintiff was entitled to the aforesaid amount of Rs.2,38,72,006.94/-",,,,

(Rupees Two Crore Thirty Eight Lakh Seventy Two Thousand Six and Ninety Four Paisa) only, being an amount obtained in T.A. No.41 of 2002.",,,,

According to the plaintiff, the defendant, pursuant to the said MOU, was obliged to pay the said sum to the plaintiff. Therefore, there is no doubt that",,,,

the entire decree as prayed for is based on the said MOU. Now, in the context of the claim made by the plaintiff and the execution of the MOU to",,,,

meet the claim of the defendant whether or not the said document per se transfers any interest in favour of the plaintiff which is attached to,,,,

immovable property or not and if such an interest is transferred through such document whether the document is chargeable under Section 3 of the,,,,

Stamp Act and whether it should follow the consequence of the provisions of Sections 35 and 36 of the Stamp Act or not.,,,,

Mr. Jishnu Chowdhury, appearing for the defendant and in support of the objection so raised, submits that both way the plaintiff is bound to suffer for",,,,

nonregistration of the document under the Indian Registration Act and for nonstamping of the document properly in view of the Stamp Act. Therefore,",,,,

the document cannot be admitted into evidence. In support of his submission Mr. Jishnu Chowdhury has relied on two decisions in the case of â€",,,,

• Perumal Ammal Minor By Mother & … - Vs. â€" Perumal Naicker & Anr., reported in AIR 1921 Madras 137 equivalent to 61 Ind Cas 461.",,,,

• Elumalai Chetty & Jagannadha … - Vs. â€" P. Balakrishna Mudaliar, reported in 66 Ind Cas 168.",,,,

The first decision in the case of Perumal Ammal (supra) the question arose whether an unregistered instrument by which a party made an immediate,,,,

disposition of property consisting of mortgages, promissory notes and book-debts to another party, is valid in law or not. In the said case, the said",,,,

unregistered instrument was Exhibit 50. Admissibility of Exhibit 50 is in question in the given case. In the said case it was held that according to the,,,,

scheme of the Act, as amended in 1900, mortgages ordinarily can be transferred by way of sale only as immovable property and consequently, only by",,,,

a registered instrument within the meaning of Section 123 of the Transfer of property Act and, accordingly, gift of the mortgage under Exhibit 50,",,,,

therefore, fail. The other question dealt with in the said decision is as to whether failure of the gift of the mortgages was a sufficient ground for",,,,

dismissal of the suit or not, is a question not germane in the present case. By the said decision decree which was passed based on the said Exhibit 50,",,,,

an unregistered document, was varied and/or modified.",,,,

The second decision in the case of Elumalai Chetty (supra) the Hon’ble Division Bench discussed a similar question whether a mortgage right or,,,,

debt can be transferred without a registered instrument or not? This Hon’ble Division Bench, however, decided that the decision in Perumal",,,,

Ammal (supra) was a obiter dictum so far its observation as regards promissory note. The decision, however, is not applicable in the fact situation of",,,,

the present case so far as it relates to the consequences of non-registration of a document which involves transfer of mortgage by deposit of title-,,,,

deeds, is a case completely different from the case at hand.",,,,

Mr. Sabyasachi Chowdhury, learned Counsel appearing for the plaintiff, submits that the document per se does not create any interest in the",,,,

immovable property as submitted by the defendants. According to him, admissibility of the document is to be decided after taking note of the entire",,,,

document and its purport, that is, the document being Memorandum of Understanding (MOU), simplicitor is to be taken into consideration. If the",,,,

document per se does not create any interest on immovable property and when the document is a document by which the claim of the West Bengal,,,,

Financial Corporation (defendant) in T.A. No.41 of 2002 is being sought to be transferred in the manner and method envisaged in the document,",,,,

cannot demand either registration, or impounding under Sections 33 and 34 of the Indian Stamp Act. He submits that the document being the",,,,

Memorandum of Understanding per se is not compulsorily registrable in any event the document has to be construed as a whole and the interpretation,,,,

of the document is a matter of trial. According to him, interests are also there on movables being in the nature of debt or money which does not or",,,,

cannot require registration under the Indian Registration Act.,,,,

He submits that Clause 5 of the said MOU envisaged and recorded the undertaking of the defendant for the purpose of rendering of required,,,,

cooperation and assistance which includes making over to it original papers and documents related to its claim and making available competent,,,,

witnesses to depose in T.A. No.41 of 2002 with regard thereto. According to the plaintiff, in this background, no registration of the document being",,,,

Memorandum of Understanding, is required, nor even the same calls for impounding under Section 33 of the Indian Stamp Act. According to him,",,,,

neither Clause 3, nor Clause 8 of the said MOU as claimed by Mr. Jishnu Chowdhury, no interest in the land passes through if such clauses are read",,,,

together, the logical conclusion would be that no interest in immovable property is passing through the document. Therefore, it does not attract the",,,,

provisions of Section 17 of the Indian Registration Act, nor does it attract the provisions of Section 35 of the Indian Stamp Act.",,,,

In order to buttress his such submission that the document per se does not transfer any title to an immovable property, he has relied on a decision in",,,,

the case of Imperial Bank of India â€" Vs. â€" Bengal National Bank Limited, reported in 1931 Privy Council 245 and also in 58 Indian Appeals 323.",,,,

Mr. Sabyasachi Chowdhury has contended that the Madras judgments have not been correctly appreciated and the position of law and the,,,,

amendment of Section 3 of the Transfer of Property Act has been misconstrued and Section 6 of the Transfer of Property Act has not been,,,,

considered. According to the learned Counsel, the Privy Council in the said decision of Imperial Bank (supra) has held that â€"",,,,

“There appears to be no difficulty in a transfer of a debt without the security: the original debtor can always redeem: the relations between him and,,,,

his original creditor are not altered: indeed, in the present case it would appear that the Imperial Bank can only enforce the debt in the name of the",,,,

respondent bank which, no doubt, the latter bank must permit. The transferee takes no further interest than the transferor was able to give…â€​",,,,

The fact involved in the given case was that the respondent Bank had borrowed from the Imperial Bank of India, the appellant, a given sum. It",,,,

executed a debenture to the Imperial Bank, a debenture creating a floating charge on the whole undertaking, properties, assets and interests present",,,,

and future of the respondent Bank as security for the loan. Subsequently, similar debenture was executed and delivered to the Imperial Bank creating",,,,

a similar floating charge as security for a further loan. Both documents were duly registered pursuant to Section 109 of the Indian Companies Act,",,,,

1913 but the document was not registered under the Indian Registration Act, 1908. In both the documents the charge was to become fixed, amongst",,,,

other events, on the respondent Bank suspending payment. The question which is the subject-matter of the said appeal involved a considerable sum of",,,,

money and it appears that the respondent Bank in the original course of its business lent money to its customers on overdraft account on the security,,,,

of title deeds deposited by the customers in respect of which loans at the date of the suspension of payment of sums remained due to the Bank, who",,,,

continued to hold the security. Whether, therefore, the two debentures held by the Imperial Bank gave them any and what interest in the amounts due",,,,

to the respondent Bank from such customers and in the property comprised in the title deeds. The Imperial Bank set up the express charge over the,,,,

whole of the assets of the respondent Bank. The liquidators contended that the debentures, so far as they seek to charge the debts secured on deposit",,,,

of title deeds, come within Section 17 of the Indian Registration Act which requires registration of all non-testamentary instruments which purport or",,,,

operate to create declare, assign, limit or extinguish, whether in the present or in the future, any right, title or interest whether vested or contingent of",,,,

the value of Rs.100/- and upwards to or in any immovable property. The result of nonregistration is, as it was contended, not only to deprive the",,,,

Imperial Bank of any right to the property comprised in the title deeds, but also of any right over the sums so secured. Such view found favour with",,,,

the High Court on appeal which has been altered by Their Lordships in the given case of Imperial Bank (supra) holding â€",,,,

“The debentures were intended to create a charge over the whole of the assets of the respondent bank; a floating charge until the occurrence of,,,,

the stipulated events; a fixed charge when any of these events occurred. It is unnecessary to discuss how such a floating charge obtains legal validity,,,,

in India. It is sufficient in this case to say that its validity over assets other than immoveable property is not disputed, and has been expressly",,,,

established by the decree in the debenture-holders' action referred to above. Inquiry, therefore, has to be made as to what were the assets of the",,,,

respondent bank other than immoveable property at the time when the charge became fixed. It seems to their Lordships obvious and beyond question,,,,

that the principal assets of this bank, as of any bank, are the debts due to the bank from customers either for advances, whether on overdraft or loan",,,,

account, or for any other consideration, such as guarantee, etc. The debts may be secured either on immoveable property or on merchandise: they",,,,

may be wholly secured or partly secured: the security may have been given when the debt was created or later; but in any case, the debts exist as",,,,

moveable property and do not, if secured, become identified with the security or transformed into land in the one case or merchandise in the other.â€​",,,,

The principle laid down in this case is very clear to the effect that the same does not relate to in any way with the immovable property. Therefore,",,,,

Their Lordships hold that even in absence of registration under the Indian Registration Act the right based on the debentures is enforceable but the,,,,

case which we are dealing is totally different. The claims sought to be established through the document in dispute is inter-ovenly related with land and,,,,

the right claimed by the plaintiff is not separable from the land in question. Therefore, it cannot be argued that the document per se does not transfer",,,,

any title or that the document is not required to be properly stamped within the ambit of Section 35 of the Stamp Act. Few clauses of the said MOU is,,,,

required to be taken note of and those are set out below:-,,,,

“3. With the execution of this Memorandum of understanding the First Party shall be deemed to have transferred, conveyed, assured and assigned",,,,

all its claims against the company in liquidation and against the said Gouranga Sundar Das and Sunil Kumar Das to the Second Party, including its",,,,

claims in the T.A. No.41 of 2003 and the charge being claimed by it over and in respect of the premises of Biren Roy Road (West), at or for the",,,,

consideration of Rs.53,70,000/(Rupees fifty three lacs and seventy thousands only). consequently the First Party no longer be entitled to in any manner",,,,

either enforce or to seek to enforce the same and the Second Party will alone be entitled to pursue and to enforce all claims of the First Party against,,,,

the company in liquidation and against the said Gouranga Sundar Das and Sunil Kumar Das.,,,,

E. Apart from the front portion of the premises, Biren Roy Road (West), Joth Sibarampur, 24-Pargans (South) detailed in the Schedule “Aâ€",,,,

hereto the First Party has also claimed an interest in the rear portion of the said property owned by the said Gouranga Sundar Das and Sunil Kumar,,,,

Das in an application under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 filed by the United Bank of India",,,,

against the company in liquidation and against the said Gouranga Sundar Das and Sunil Kumar Das as guarantors before the learned Debts Recovery,,,,

Tribunal â€" III, Kolkata, being T.A. No.41 of 2003, to which the First Party is also a party. In the said proceeding the First Party has also put",,,,

forward its claims against the company in liquidation and against the said Gouranga Sundar Das and Sunil Kumar Das.,,,,

Having transferred, conveyed, assured and assigned the entirety of its actionable claim against the company in liquidation and its directors against",,,,

the personal guarantees given by them in favour of the Second Party at or for the consolidated consideration of Rs.53,70,000/- (Rupees fifty three lacs",,,,

and seventy thousand only), in the event of the First Party receiving any payment from the Official Liquidator on account of its claims against the",,,,

company in liquidation within a year from the date of execution of this Memorandum of Understanding, the First Party shall in writing call upon the",,,,

Second Party to take back its fixed deposit receipts for the sum of Rs.23,70,000/- (Rupees twenty three lacs and seventy thousands only), upon paying",,,,

to the First party the difference between the sum of Rs.23,70,000/- (Rupees twenty three lacs and seventy thousands only) and the amount received",,,,

from the Official Liquidator and the said sum of Rs.23,70,000/(Rupees twenty three lacs and seventy thousands only). In the event the Second Party",,,,

fails and/or neglects to do so within thirty days of being so called upon, the First Party shall be entitled to encash the fixed deposit receipts, and after",,,,

appropriating therefrom the shortfall amount, be liable to pay to the First party the balance. In the event of the First party not receiving any payment",,,,

from the Official Liquidator on account of its claims against the company in liquidation within a year from the date of execution of this Memorandum,,,,

of Understanding, the First Party shall in writing call upon the Second Party to take back its fixed deposit receipts for the sum of Rs.23,70,000/-",,,,

(Rupees twenty three lacs and seventy thousands only) upon paying to the First party the said sum.,,,,

In the event the Second Party fails and/or neglects to do so within thirty days of being so called upon, the First Party shall be entitled to encash the",,,,

fixed deposit receipts and to appropriate the proceeds to the extent of Rs.23,70,000/- (Rupees twenty three lacs and seventy thousands only) thereof..",,,,

In the event after one year any payment is received by the First Party from the Official Liquidator either after the encashment of the Fixed Deposit,,,,

receipt by it or after receiving payment of Rs.23,70,000/- (Rupees twenty three lacs and seventy thousands only) against the same from the Second",,,,

Party, the First Party shall pay forthwith the entirety of the amount upto Rs.23,70,000/- (Rupees twenty three lacs and seventy thousands only)",,,,

received by it from the Official Liquidator to the Second Party. In case the amount received by the first party from the Official Liquidator exceeds,,,,

Rs.23,70,000/- (Rupees twenty three lacs and seventy thousands only), then the exceed amount received above Rs.23,70,000/- (Rupees twenty three",,,,

lacs and seventy thousands only) will be retained by the First Party.,,,,

The First Party acknowledge that the Second Party is in possession of the said Property and has appointed Security Guards at the said property to,,,,

protect the same from encroachment etc.,,,,

The First Party having agreed to accept the sum of Rs.53.70 lakhs for assignment and all of claims against the company in liquidation and its,,,,

directors/guarantors, the First Party shall not be entitled to claim any further or future rights against the company in liquidation and its",,,,

Khatian No.,Dag. No,Area,Nature of Land,"Proportionate annual

payable to the

Superior landlord the

State of West

Bengal

592,2586,"1 Bigha 19 Cottahs 5

Ch 33 sq.ft. (2633.64

Sq.ft.)","Raiyat Dakhali

satwa bisista",R.6.70 P.A.

514 Part,2580 Part,"0 Bigha 13 Cottahs 6

Ch 14 Sq.ft. (896.37

Sq.ft.)",-D0-,"Rs.1.88 P.A.

(Approx)

in a schedule to the order which would have been the more regular course, is not the case in the present one.",,,,

Therefore, the plaintiff cannot avoid to pay proper stamp duty on the document which they sought to tender in evidence and pray for making of the",,,,

same as an exhibit in suit. Section 35 of the Indian Stamp Act, 1899 is set out below :",,,,

“35. Instruments not duly stamped inadmissible in evidence, etc.â€"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:",,,,

Provided thatâ€",,,,

(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 an 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 (5 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.â€​,,,,

If the document is sought to be marked, the same cannot be admitted into evidence unless it is properly stamped. However, the document can be",,,,

relied on in evidence for a collateral purpose as has been indicated in the above-referred decision of the Privy Council. Following the above decision in,,,,

the case of Ram Rattan (supra) the Hon’ble Apex Court, in the case of Avinash Kumar Chauhan (supra), held that â€"",,,,

“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 is at all permissible. Even transfer of possession is also not",,,,

permissible. The contention that the document was admissible for collateral purpose is not correct. Parliament has, in Section 35, advisedly used the",,,,

words “for any purpose whatsoeverâ€. Thus, the purpose for which a document is sought to be admitted in evidence or the extent thereof would",,,,

not be a relevant factor for not invoking Section 35. If all purposes for which the document is sought to be brought in evidence are excluded, there is",,,,

no reason as to how the document would be admissible for collateral purpose.â€​,,,,

The above finding was held by the Hon’ble Apex Court in the fact situation of the given case where the appellant argued that having regard to the,,,,

fact that the unregistered Deed of Sale was sought to be put in evidence not for the purpose of enforcement of the contract but only for the purpose,,,,

of recovery of the amount of consideration, which indisputably had been paid to the respondent and such a purpose, according to the appellant, a",,,,

collateral one, and according to the appellant, provisions of Sections 33 and 35 of the Stamp Act, 1899 could not be attracted. However, the contention",,,,

made by the appellant was not accepted by the Hon’ble Apex Court and the appeal was dismissed. In this regard Section 3 of the Indian Stamp,,,,

Act, 1899 is also important to take note of which is set out below:-",,,,

“3. Instrument chargeable with duty.â€"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 sayâ€"",,,,

(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 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 ofâ€",,,,

(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;,,,,

(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 19 of 1938, or the Indian",,,,

Registration of Ships Act, 1841 (57 and 58 Vict., Sections 60, 10 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.,,,,

Explanation.â€"For the purposes of this clause, the expressions “Developerâ€, “Special Economic Zone†and “Unit†shall have meanings",,,,

respectively assigned to them in clauses (g), (za) and (zc) of section 2 of the Special Economic Zones Act, 2005.â€​",,,,

The document in question is not an exempted one as mentioned in the Schedule. Therefore, proper stamp duty ought to have been paid on it. In the",,,,

present case, the entire claim of the plaintiff is based on the document sought to be tendered in evidence which is impermissible in law and, therefore,",,,,

it attracts impounding under Section 33 of the Indian Stamp Act, 1899. Therefore, the document is, hereby impounded and be placed in the custody of",,,,

the Registrar, Original Side, for taking necessary steps for adjudication and to communicate the decision thereof to the parties with request to act in",,,,

accordance with the law.,,,,

The second question which has been raised in the present case by Mr. Jishnu Chowdhury, appearing for the defendant, is that the document is also not",,,,

admissible for its non-registration as required under Section 17 of the Indian Registration Act, this Court holds that the said question need not be gone",,,,

into at the stage of admission of a document as an evidence.,,,,

Although, it has been submitted by Mr. Jishnu Chowdhury that even after the document is stamped it should not be admitted in evidence, since it is an",,,,

unregistered document and time to effect registration, has lapsed, I do not agree with this submission because at this stage, question of registration or",,,,

nonregistration in the context of admissibility of the document cannot arise even if it is not registered. A document can be admitted into evidence, if the",,,,

same is proved by the parties to have been executed by them, in the box.",,,,

No further discussion is necessary in this matter which might otherwise pre-judge the issues involved in the suit. The objections raised by the parties,,,,

are, accordingly, decided. Let this matter appear before this Court after a period of three months after the adjudication is made by the Collector.",,,,

Learned Registrar, Original Side, is directed to furnish a report before this Court when the matter is next listed on the returnable date. Urgent",,,,

Photostat certified copy of this judgment, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual formalities.",,,,