Hasmukh Jain (Gandhi) vs Smt. Sudha

N.K. Mody, J.—Being aggrieved by the order dated 03/10/12 passed by IX A.D.J., Indore in Civil Suit No. 55-B/10 whereby application filed by the petitioner for taking the document admissible in evidence was dismissed, present petition has been filed. Short facts of the case are that the petitioner filed a suit for recovery of Rs. 3,85,250/- alleging that the petitioner entered into an agreement to purchase the plot in dispute vide agreement dated 22/11/08 for a consideration of Rs. 19,50,000/- and paid earnest money of Rs. 3,01,000/-. It was alleged that since the respondent is not executing the sale deed in favour of petitioner, therefore, petitioner is entitled for refund of amount. It was prayed that decree be passed in favour of petitioner. The suit was contested by the respondent on various grounds including on the ground that it is only Rs. 21,000/- which has been received by the respondent. It was prayed that the suit be dismissed. After framing of issues, at the stage of evidence petitioner tried to exhibit the agreement dated 22/11/08 in evidence, which was objected by the respondent. Thereafter an application was filed by the petitioner to take the document in evidence, which was dismissed, hence this petition.

Learned counsel for the petitioner argued at length and submits that the impugned order is illegal, incorrect and deserves to be set aside. It is submitted that the document which is filed by the petitioner is on stamp paper of Rs. 100/- and since it is only a receipt, therefore, it requires stamp duty of Rs. 1/-. Learned counsel placed reliance on definition of ''Receipt'' laid down u/s 2(23) of Indian Stamp Act, 1899, which reads as under:-

Section 2(23)- Receipt includes any note, memorandum or writing:-

(a) whereby any money, or any bill of exchange, cheque or promissory note is acknowledged to have been received, or

(b) whereby any other movable property is acknowledged to have been received in satisfaction of a debt, or

(c) whereby any debt or demand, or any part of a debt of demand, is acknowledged to have been satisfied or discharged, or

(d) which signifies or imports any such acknowledgment, and whether the same is or is not signed with the same of any person.

Learned counsel further placed reliance on Section 35(b) of Indian Stamp Act, 1899, which reads as under:-

Section 35. Instruments not duly stamped inadmissible in evidence etc.

(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 on payment of a penalty of one rupee by the person tendering it.

Learned counsel submits that in view of the aforesaid since the document is receipt and suit is for refund of amount, therefore, learned Court below was not justified in dismissing the application filed by petitioner. It is submitted that the petition be allowed and impugned order passed by the learned Court below be set aside.

Learned counsel for respondent submits that since it was an agreement to purchase the properly, therefore, it was required to be stamped @ 1% of the transaction. For this contention reliance is placed on Article 5(e)(ii) of Indian Stamp Act, which reads as under:-

Agreement or memorandum of an agreement:-

(e) If relating to sale of immovable property:-

It is submitted that the petition filed by the petitioner be dismissed.

From perusal of the record it is evident that the document in question is agreement to sale whereby petitioner agreed to purchase the flat for a consideration of Rs. 19,50,000/- and paid a sum of Rs. 21,000/- as earnest money. The suit is for recovery of money. Receipt of Rs. 21,000/- was by cheque is also not disputed by the respondent. Petitioner wants to use the document as receipt. In the facts and circumstances of the case, petition filed by the petitioner is allowed and impugned order is set aside and the petitioner is permitted to adduce the document Ex. P/1 in evidence, which shall be admissible for collateral purpose to prove the receipt of the amount. With the aforesaid, petition stands disposed of.