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Judgment
The revisional application is at the instance of the defendant in a suit for specific performance of an agreement for sale and is directed against Order No. 67 dated July 26, 2016 passed by the learned Civil Judge, (Senior Division), Siliguri in Title Suit No. 15 of 2010.
The plaintiff/opposite party filed the suit for Specific Performance of contract and for other consequential reliefs alleging that the plaintiff and the defendant verbally agreed and settled the terms and conditions of the agreement for sale on February 27, 2007 and the terms and conditions of the said oral agreement was reduced in writing on March 5, 2007.
The learned trial Judge by the order dated April 20, 2012 impounded the said agreement for sale dated March 5, 2007 being not properly stamped under Section 33 of the Indian Stamp Act, 1899 (hereinafter referred to as the said Act in short) and sent the same for assessment of the stamp duty payable on the said agreement for sale to the Sub-Registrar Siliguri.
The petitioner assailed the said order in revision being C.O. No. 3059 of 2015. The learned Single Judge of this Court by the order dated December 14, 2015 disposed of the said revisional application by directing that the said agreement for sale be sent to the District Collector for assessment of the stamp duty payable on the said document and also for assessment of the penalty on the said assessed payable stamp duty. Thereafter, the said agreement was sent to the District Magistrate Darjeeling for such assessment. The District Magistrate assessed the market value of the suit property and the payable stamp duty thereon along with penalty on the assessed stamp duty and sent his report to the learned Court below under Memo No. 114/RM dated May 25, 2016.
The learned trial Judge on the basis of the said report directed the petitioner to pay the stamp duty and the penalty thereon by the order impugned.
Mr. Roy learned counsel appearing on behalf of the petitioner submits that the District Magistrate assessed the penalty under Section 35 of the said Act of ten percent on the assessed payable stamp duty but it is clear from under Section 35(a) of the said Act such penalty should be ten times of the payable assessed stamp duty on the said document, not ten percent as assessed by the District Magistrate. He, therefore, submits that the learned trial Judge should not have accepted the said report of the District Magistrate and should not have directed the plaintiff/opposite party to pay stamp duty as per the said assessment of the District Magistrate.
Mr. Ghosh, learned counsel appearing on behalf of the plaintiff/opposite party refuting the contention of Mr. Roy submits that the District Magistrate, is empowered under Sub-Section (b) of Section 40 of the said Act to exercise his discretion in fixing the rate of penalty and in exercise of such discretion he has assessed the said penalty at the rate of ten percent.
He further submits that from the materials on record it cannot be said that the District Magistrate has exercised his such discretion arbitrarily or capriciously.
Heard learned counsel for the parties. Perused the materials on record.
Section 35 of the said Act puts a restriction to an authority empowered to receive evidence to admit any document in evidence which is though chargeable with duty but not sufficiently stamped. The proviso (a) appended to Section 35 of the said Act empowers admission of such document on payment of duty with which the said document is chargeable or in 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 proper duty or deficient portion thereon exceeds five rupees, of a sum equal to ten times such duty or portion.
In the present case the agreement for sale was impounded under Section 33 of the said Act and it was sent to the District Magistrate under Section 38 of the said Act for assessment of the payable stamp duty on the said instrument and the penalty thereon.
Therefore, Section 35(a) of the said Act has no manner of application in the matter of assessment of the payable stamp duty on the said agreement for sale and the assessment of penalty thereon.
The District Magistrate under Section 40 of the said Act assessed the stamp duty payable on the said agreement for sale together with payable penalty thereon and issued a certificate to the effect under Sub-Section (2) of Section 40 which is conclusive evidence of the matters stated therein.
The learned trial Judge is, therefore, rightly accepted the said report of the District Magistrate and directed the petitioner to make payment of stamp duty as per assessment made by the Collector Darjeeling along with penalty as assessed by the District Magistrate in his said report dated May 25, 2016.
In view of the above, the order impugned does not call for any interference. C.O. No. 3914 of 2016 is thus dismissed.
No order as to costs.
The learned trial Judge is requested to expedite the hearing of the suit.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.