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Judgment
S. Usha, J
The Miscellaneous Petition No. 72 of 2013 is to substitute the name LAHEJJAT GLOBAL BEVERAGES PRIVATE LIMITED in the place of
M/s. LAHEJJAT TEA under section 92(2) of the Trade Marks Act, 1999 read with Rules 10, 11, 14, 16, 17 and 19 of the Intellectual Property
Appellate Board (Procedure) Rules, 2003. The original respondent M/s. Lahejjat Tea was a partnership firm registered under the Indian Partnership
Act, 1932. M/s. Lahejjat Tea assigned its business vide agreement deed dated 28/04/2012 as a going concern on a slump sale basis along with all its
rights, benefits and interests in the said business including the trade mark together with all debts and liabilities to the present respondent. The original
respondent has since been dissolved vide a deed of dissolution dated 08/05/2012 with effect from 01/05/2012. Therefore, this instant Miscellaneous
Petition has been filed to bring on record the assignee as respondent.
The respondents/the applicants herein did not file their counter affidavit to the Miscellaneous Petition but made their oral submissions.
The learned counsel for the petitioner submitted that as there was an assignment of the trade mark, the present respondent i.e., the assignee has to
be brought on record, the Miscellaneous Petition therefore be allowed for amending the name of the respondent.
The learned counsel for the respondent vehemently opposed the Miscellaneous Petition. The counsel submitted that the stamp duty has not been
paid and the assignment deed is therefore not a valid document in the eyes of law. The petitioners are to pay 3% stamp duty of the consideration
amount whereas they have paid only Rs. 500/- in total. As per the provisions of the Stamp Act, any instrument which is not duly stamped is not
admissible in evidence. The instrument is admissible on payment of the necessary stamp duty and penalty. The counsel further submitted that nothing
has been stated about the assets in the deed of dissolution.
The learned counsel for the petitioner agreed to pay the stamp duty and the penalty. However, we give our observations in the matter.
The deed of assignment here is made for a consideration of Rs. 5,00,000/- and therefore the provisions of the Stamp Act are attracted. Under
section 35 of the Stamp Act, 1899, on payment of the stamp duty and the penalty the deed of assignment, which is not properly stamped is admissible
in evidence.
The provisions of section 33 of the Stamp Act provides that every person who has the authority to receive evidence before which the deed is
produced is to impound the same if the deed is not duly stamped. Section 35 provides that a deed shall be inadmissible in evidence if the same is not
duly stamped.
Section 35 of the Stamp Act, 1899 reads as follows:-
S. 35. Instruments not duly stamped inadmissible in evidence, etc:.- 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 that--
(a) any such instrument not being, an instrument chargeable with a duty not exceeding ten naye paise only, or a bill of exchange or promissory note,
shall, subject to all just exceptions, 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 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 anyone. 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;
(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.
Section 33 provides an obligation to impound a document. The Court was empowered to pass the necessary orders under section 35 to give effect
to the instrument.
In T. Bhaskar Rao v. T. Gabriel and others [MANU/AP/0081/1981 : AIR 1981 A.P. 175], it has been held:-
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 be 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.
It was further held:-
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.
In view of the above observations and in our considered view, the assignment deed can be made admissible in evidence on payment of necessary
stamp duty and penalty. The petitioner/respondent is, therefore, directed to pay the necessary stamp duty as agreed and submit the necessary proof
before this Board for further course of action. The Miscellaneous Petition No. 72 of 2013 is accordingly disposed of in the above terms.