Braja Sundar Nanda Vs. Pravabati Kar and Others

Decided On : Aug-14-2013

Court : Orissa

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			'judgement' => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C) No.14123 OF 201.In the matter of application under Articles 226 and 227 of the Constitution of India ----------Braja Sundar Nanda …… Petitioner -VersusPravabati Kar and others. For Petitioner : For opp. parties: …... Opp. Parties. M/s. Goutam Mukherji, P.Mukherji, A.C. Panda, S.D. Ray and S.Mishra. . Mr. B.H.Mohanty, Sr. Advocate. ----------------------Decided on 14.08.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the defendant No.1 in C.S. No.654 of 2011-I pending before the learned Civil Judge (Senior Division), First Court, Cuttack against the order passed by the said court on 27.7.2012.</p><p>2. The opp. party No.1 filed the aforementioned suit seeking a decree for specific performance of contract directing the defendants 1 to 7 to execute and register a sale deed in her favour in respect of the suit land described in Schedule-A, as delineated Schedule – C, of the in the sketch map plaint, on receiving the given in balance 2 consideration money of Rs.15.00 lakhs within a time to be fixed by the court, failing which for execution of the sale deed through court. On summons being served, the petitioner, who is defendant No.1 appeared and filed his written statement denying the entire allegations made in the plaint. The other defendants have also filed their respective written statement denying the plaint averments. After framing of issues, the suit being ready for hearing, the plaintiff – opp. party No.1 filed her evidence on affidavit. In course of her cross-examination, she produced the alleged plain paper agreement in evidence and sought to mark it as an exhibit. On objection being raised with regard to the authenticity of the said document, which was unstamped and unregistered, the said document has been marked as an exhibit with objection. The petitioner’s contention that the said document could No.have been marked as an exhibit was overruled by the impugned order.</p><p>3. It appears from the impugned order that the learned trial court after hearing the parties appreciated that the document is compulsorily registerable. However, by the impugned order, it held that the plaintiff being a lady is entitled for exemption of court fee and hence, she can be directed to pay the stamp fee along with the registration fee, but at this juncture the plaintiff canNo.be compelled to pay the stamp duty and registration fee along with the penalty which will 3 definitely cause prejudice to the plaintiff. The relevant portion of the impugned order passed by the learned trial court is quoted hereunder:“Both the parties are heard. Admittedly, Ext. 1 has been marked with objection and admissibility of the same will be considered at the time of the hearing of suit and if it is held that Ext. 1 is one agreement for sale of immovable property basing on which possession has been delivered in favour of the plaintiff before or after execution of the agreement, then plaintiff, who is a lady and who is entitled for exemption of court fees, can be directed to pay the stamp fee along with registration fees, as per the amendment of stamp act by Govt. of Orissa, as mentioned earlier. However, at this juncture the plaintiff canNo.be compelled to pay the stamp duty and registration fees along with penalty, as motioned earlier, which will definitely cause prejudice to the plaintiff. Therefore, the plaintiff is directed to pay impounding fees as per the schedule 1-A of the stamp duty on instruments, as per Orissa amendment as mentioned earlier, along with penalty as per section 35 of Indian Stamp Act, 1899 for impounding of the same with an undertaking she shall pay the additional stamp duty and registration charges in the event of her success in the original suit. Accordingly, the office is directed to quantify the amount of impounding in this regard and the plaintiff is directed to pay the same positively, with undertaking, as mentioned earlier. The objection raised by defendants in this regard is accordingly determined. Put up on 30.7.2012 for further crossexamination of PW1 and separate letter be written to the Hon’ble High Court seeking for extension of time for disposal of the suit”..</p><p>4. Mr. Mukherjee, learned counsel for the petitioner raised a question of law with regard to marking of the said agreement as exhibit with objection, inter alia, contending that the said agreement unless impounded canNo.be marked as exhibit and, therefore, directions should be issued to 4 unmark the said agreement which has been marked as Ext. 1 till impounding of the said document.</p><p>5. Mr. B.H. Mohanty, learned senior counsel appearing on behalf of the opp. party No.1, on the contrary, submitted that the agreement can be marked for co-lateral purposes even before the same is impounded.</p><p>6. To appreciate the rival contentions, it would be apt to refer to section 17 of the Registration Act, 1908 (for short, which ‘the Registration Act’) provides documents stated in section 17(1) (a) to (e) that the are compulsorily registerable. Further, in respect of Odisha, two more subsections, i.e. sub-sections (1-f) and (1-g) have been introduced, which provide that agreement to sell immovable property, possession whereof, has been or is handed over to the purported purchaser and Power of attorney relating to transfer of immovable property, possession whereof has been or is handed over to the purported attorney holder are also compulsorily registerable. It is also apt to refer to section 17 (1-A) of the Registration Act, which provides that the documents containing contracts to transfer for consideration, immovable property for the purpose of section 53A any of the Transfer of Property Act, 1882 shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act”</p><p>5. and if such documents are No.registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A. The said amendment came into effect from 24.9.2001. The agreement in question is on a plain paper alleged to have been executed by the petitioner and some of the other defendants, where, it has been stated that on the plaintiff agreeing to purchase the land in question mentioned therein the executants of that agreement, i.e., the petitioner and other defendants agreed to such proposal to sell the said land for a consideration of Rs. 40.00 lakhs and a sum of Rs. 25.00 lakhs was paid in advance to the executants, who gave possession of the property to the plaintiff and executed the agreement agreeing therein that from the date of agreement within a year by accepting the balance consideration money, they will execute the sale deed and register the same failing which the plaintiff can get the same executed by taking shelter of law. Admittedly, the said agreement is on a plain paper and No.duly stamped. Under section 33 of the Indian Stamp Act, 1899, provision is made with regard to instrument No.duly stamped. For brevity, section 33 is quoted hereunder:</p><p>“33. Examination and impounding of instruments.(1) Every person having by law or consent of parties, authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is No.duly stamped, impound the same. 6 (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in (India), when such instrument was executed or first executed: Provided that(a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does No.think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898); (b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf. (3) For the purposes of this section, in cases of doubt(a) [the (State Government)]. may determine what offices shall be deemed to be public offices; and (b) [the [State Government].]. may determine who shall be deemed to be persons in charge of public offices”..</p><p>7. duty In order to examine what would be the stamp payable on the plain paper agreement, which is compulsorily registerable, as in the instant case, which has been marked as Ext. 1 with objection, it would be profitable to refer to Entry No.23 of Schedule-I of the Indian Stamp Act as amended. The said Entry relates to conveyance as defined by section 2 (10) of the said Act No.being a transfer charged or exempted under Entry No.62. The Entry 23 (b) has been 7 amended by the State of Odisha under an order of the Revenue and Disaster Management Department No.Stamp-10/0633267/R.D.M. dated 5.8.2008 wherein, the percentage of stamp payable as per the schedule in the Indian Stamp Act has been reduced from 8 per cent to 7 per cent.</p><p>8. Attention of the Court was drawn to section 35 of the Indian Stamp Act which provides that instruments No.duly stamped inadmissible in evidence. The relevant portion of the said section is quoted hereunder: “35.Instruments No.duly stamped inadmissible in evidence, etc. - xx xx xx Provided that – (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) to (e) 9. In the case of xx xx xx”. Javer Chand and others v. Pukhraj Surana, AIR 196.SC 1655.the Hon’ble Supreme Court held as follows:“4. ……………….Where a question as to the admissibility of a document is raised on the ground that it has No.been stamped or has No.been properly stamped, it has to be decided then and there when the document is tendered in evidence…………….Section 35 is in the nature of a penal provision and has far-reaching effects. Parties to a litigation, where such controversy is raised, 8 have to be circumspect and the party challenging the document has to be alert to see that the document is No.admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case…………..”</p><p>10. With regard to admitting a document with objection to consider its admissibility later on, this Court in the case of Chaturbhuj Sahu v. Dibakar Mallik, 34 (1968) CLT 80.has held that the Court which admitted the document in evidence and marked it as an exhibit and wrongly took the view that he would consider the objection later on, adopted a wrong procedure and acted contrary to law.</p><p>11. In the case of Government of Andhra Pradesh and others v. Smt. P. Laxmi Devi, AIR 200.SC 1640.the Hon’ble Supreme Court interpreting section 33-1 of the Indian Stamp Act, in paragraphs – 16 and 19 held as follows: “16…………………The use of the word ‘shall’ in Section 33(1) shows that there is no discretion in the authority mentioned in section 33 (1) to impound a document or No.to do so. In our opinion, the word ‘shall’ in section 33(1) does No.mean ‘may’ but means ‘shall’. In other words, it is mandatory to impound a document produced before him……………….”</p><p>“19. It is well settled that stamp duty is a tax, and hardship is No.relevant in construing taxing statutes which are to be construed strictly. As often said, there is no equity in a tax vide Commissioner of Income Tax vs. Firm Muar, AIR 196.SC 1216…………..”</p><p>”</p><p>12. Coupled with the recitals made in the agreement, it would be profitable to refer to paragraph-12 of the plaint filed by the opposite party No.1, wherein it is stated thus:“That on 01.05.2011 at the plaintiff’s residence, as agreed by the parties, plain paper document was prepared. It was scribed by Santosh Kumar Patnaik at the instructions of Defendant nos. 1 to 3. The executants highly enlightened persons, went through the document and signed in presence of all present there. The scribe and the two witnesses were also present and they signed the document after signature of Defendant Nos. 1 to 3. As it was a Sunday and Defendant Nos. 1 to 3 were in a hurry, necessary stamp paper would No.be procured for preparation of the agreement. Nevertheless the document so prepared was a document recording the fact of the oral agreement which was completed one. The document also clearly recited the subject matter of agreement, the amount of consideration, the fact of receipt of advance and delivery of possession in part performance of the contract…………”. (Emphasis supplied) 13. In the case of Avinash Kumar Chauhan v. Vijay Krishna Mishra, AIR 200.SC 1489.the Hon’ble Supreme Court dealing with the question as to whether an agreement to sell would be chargeable as a conveyance, where-under possession has been delivered and whether before impounding the document/payment of the stamp duty along with penalty, such document can be admitted into evidence for any purpose, referring to section 35 (a) of the Stamp Act held that a document of this nature shall No.be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, the document even canNo.be admitted for collateral purpose. In this context, the 10 decision in the case of Ram Rattan v. Parmananad, AIR 194.PC 5.was referred to by the Hon’ble Supreme Court, where the Privy Council held that the words ‘for any purpose’ in section 35 of the Stamp Act should be given their natural meaning and effect and would include a collateral purpose and that an unstamped partition deed canNo.be used to corroborate the oral evidence for the purpose of determining even the factum of partition as distinct from its terms. It is found that the learned court below though referred to the above decisions, on wrong interpretation further taking and extraneous matter into consideration that the plaintiff is a lady, has marked the agreement as Ext. 1 with objection before the same was impounded and the deficit stamp duty was paid.</p><p>14. As held in the case of Avinash Kumar Chauhan (supra), a document No.duly stamped by No.paying adequate stamp duty is No.admissible in evidence in terms of section 35 of the Stamp Act and the said document canNo.also be admissible for co-lateral purposes. Hence, impounding of the said document was proper. Applying the ratio of the said decision, this Court finds that the learned trial court fell into error in returning the findings and issuing the directions as quoted above”</p><p>15. In the result, therefore, this Court quashes the said impugned order dated 27.7.2012 passed in C.S. No.654 of 2011-I and direct to unmark the agreement as Ext. 1 and the said agreement be impounded by directing the plaintiff to pay the stamp duty as per section 35 of the Stamp Act and as per the State Amendment. Applying the said provisions, it would be seen that the stamp duty payable should be calculated at 5% of the value of the consideration for the agreement and the penalty should be calculated ten times of the said amount. The plaintiff should be directed to pay the aforesaid stamp duty first before marking the agreement as an exhibit. On failure to deposit such stamp duty on calculation, the said agreement should No.be marked as an exhibit in the suit No.should it be used for any co-lateral purposes.</p><p>16. The writ petition is allowed. The interim order passed earlier stands vacated. All pending Misc. Cases also stand disposed of. …………………….. M.M. Das, J.Orissa High Court, Cuttack. August 14th ,2013/Biswal. 12',
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		'judgement' => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C) No.14123 OF 201.In the matter of application under Articles 226 and 227 of the Constitution of India ----------Braja Sundar Nanda …… Petitioner -VersusPravabati Kar and others. For Petitioner : For opp. parties: …... Opp. Parties. M/s. Goutam Mukherji, P.Mukherji, A.C. Panda, S.D. Ray and S.Mishra. . Mr. B.H.Mohanty, Sr. Advocate. ----------------------Decided on 14.08.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the defendant No.1 in C.S. No.654 of 2011-I pending before the learned Civil Judge (Senior Division), First Court, Cuttack against the order passed by the said court on 27.7.2012.</p><p>2. The opp. party No.1 filed the aforementioned suit seeking a decree for specific performance of contract directing the defendants 1 to 7 to execute and register a sale deed in her favour in respect of the suit land described in Schedule-A, as delineated Schedule – C, of the in the sketch map plaint, on receiving the given in balance 2 consideration money of Rs.15.00 lakhs within a time to be fixed by the court, failing which for execution of the sale deed through court. On summons being served, the petitioner, who is defendant No.1 appeared and filed his written statement denying the entire allegations made in the plaint. The other defendants have also filed their respective written statement denying the plaint averments. After framing of issues, the suit being ready for hearing, the plaintiff – opp. party No.1 filed her evidence on affidavit. In course of her cross-examination, she produced the alleged plain paper agreement in evidence and sought to mark it as an exhibit. On objection being raised with regard to the authenticity of the said document, which was unstamped and unregistered, the said document has been marked as an exhibit with objection. The petitioner’s contention that the said document could No.have been marked as an exhibit was overruled by the impugned order.</p><p>3. It appears from the impugned order that the learned trial court after hearing the parties appreciated that the document is compulsorily registerable. However, by the impugned order, it held that the plaintiff being a lady is entitled for exemption of court fee and hence, she can be directed to pay the stamp fee along with the registration fee, but at this juncture the plaintiff canNo.be compelled to pay the stamp duty and registration fee along with the penalty which will 3 definitely cause prejudice to the plaintiff. The relevant portion of the impugned order passed by the learned trial court is quoted hereunder:“Both the parties are heard. Admittedly, Ext. 1 has been marked with objection and admissibility of the same will be considered at the time of the hearing of suit and if it is held that Ext. 1 is one agreement for sale of immovable property basing on which possession has been delivered in favour of the plaintiff before or after execution of the agreement, then plaintiff, who is a lady and who is entitled for exemption of court fees, can be directed to pay the stamp fee along with registration fees, as per the amendment of stamp act by Govt. of Orissa, as mentioned earlier. However, at this juncture the plaintiff canNo.be compelled to pay the stamp duty and registration fees along with penalty, as motioned earlier, which will definitely cause prejudice to the plaintiff. Therefore, the plaintiff is directed to pay impounding fees as per the schedule 1-A of the stamp duty on instruments, as per Orissa amendment as mentioned earlier, along with penalty as per section 35 of Indian Stamp Act, 1899 for impounding of the same with an undertaking she shall pay the additional stamp duty and registration charges in the event of her success in the original suit. Accordingly, the office is directed to quantify the amount of impounding in this regard and the plaintiff is directed to pay the same positively, with undertaking, as mentioned earlier. The objection raised by defendants in this regard is accordingly determined. Put up on 30.7.2012 for further crossexamination of PW1 and separate letter be written to the Hon’ble High Court seeking for extension of time for disposal of the suit”..</p><p>4. Mr. Mukherjee, learned counsel for the petitioner raised a question of law with regard to marking of the said agreement as exhibit with objection, inter alia, contending that the said agreement unless impounded canNo.be marked as exhibit and, therefore, directions should be issued to 4 unmark the said agreement which has been marked as Ext. 1 till impounding of the said document.</p><p>5. Mr. B.H. Mohanty, learned senior counsel appearing on behalf of the opp. party No.1, on the contrary, submitted that the agreement can be marked for co-lateral purposes even before the same is impounded.</p><p>6. To appreciate the rival contentions, it would be apt to refer to section 17 of the Registration Act, 1908 (for short, which ‘the Registration Act’) provides documents stated in section 17(1) (a) to (e) that the are compulsorily registerable. Further, in respect of Odisha, two more subsections, i.e. sub-sections (1-f) and (1-g) have been introduced, which provide that agreement to sell immovable property, possession whereof, has been or is handed over to the purported purchaser and Power of attorney relating to transfer of immovable property, possession whereof has been or is handed over to the purported attorney holder are also compulsorily registerable. It is also apt to refer to section 17 (1-A) of the Registration Act, which provides that the documents containing contracts to transfer for consideration, immovable property for the purpose of section 53A any of the Transfer of Property Act, 1882 shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act”</p><p>5. and if such documents are No.registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A. The said amendment came into effect from 24.9.2001. The agreement in question is on a plain paper alleged to have been executed by the petitioner and some of the other defendants, where, it has been stated that on the plaintiff agreeing to purchase the land in question mentioned therein the executants of that agreement, i.e., the petitioner and other defendants agreed to such proposal to sell the said land for a consideration of Rs. 40.00 lakhs and a sum of Rs. 25.00 lakhs was paid in advance to the executants, who gave possession of the property to the plaintiff and executed the agreement agreeing therein that from the date of agreement within a year by accepting the balance consideration money, they will execute the sale deed and register the same failing which the plaintiff can get the same executed by taking shelter of law. Admittedly, the said agreement is on a plain paper and No.duly stamped. Under section 33 of the Indian Stamp Act, 1899, provision is made with regard to instrument No.duly stamped. For brevity, section 33 is quoted hereunder:</p><p>“33. Examination and impounding of instruments.(1) Every person having by law or consent of parties, authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is No.duly stamped, impound the same. 6 (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in (India), when such instrument was executed or first executed: Provided that(a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does No.think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898); (b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf. (3) For the purposes of this section, in cases of doubt(a) [the (State Government)]. may determine what offices shall be deemed to be public offices; and (b) [the [State Government].]. may determine who shall be deemed to be persons in charge of public offices”..</p><p>7. duty In order to examine what would be the stamp payable on the plain paper agreement, which is compulsorily registerable, as in the instant case, which has been marked as Ext. 1 with objection, it would be profitable to refer to Entry No.23 of Schedule-I of the Indian Stamp Act as amended. The said Entry relates to conveyance as defined by section 2 (10) of the said Act No.being a transfer charged or exempted under Entry No.62. The Entry 23 (b) has been 7 amended by the State of Odisha under an order of the Revenue and Disaster Management Department No.Stamp-10/0633267/R.D.M. dated 5.8.2008 wherein, the percentage of stamp payable as per the schedule in the Indian Stamp Act has been reduced from 8 per cent to 7 per cent.</p><p>8. Attention of the Court was drawn to section 35 of the Indian Stamp Act which provides that instruments No.duly stamped inadmissible in evidence. The relevant portion of the said section is quoted hereunder: “35.Instruments No.duly stamped inadmissible in evidence, etc. - xx xx xx Provided that – (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) to (e) 9. In the case of xx xx xx”. Javer Chand and others v. Pukhraj Surana, AIR 196.SC 1655.the Hon’ble Supreme Court held as follows:“4. ……………….Where a question as to the admissibility of a document is raised on the ground that it has No.been stamped or has No.been properly stamped, it has to be decided then and there when the document is tendered in evidence…………….Section 35 is in the nature of a penal provision and has far-reaching effects. Parties to a litigation, where such controversy is raised, 8 have to be circumspect and the party challenging the document has to be alert to see that the document is No.admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case…………..”</p><p>10. With regard to admitting a document with objection to consider its admissibility later on, this Court in the case of Chaturbhuj Sahu v. Dibakar Mallik, 34 (1968) CLT 80.has held that the Court which admitted the document in evidence and marked it as an exhibit and wrongly took the view that he would consider the objection later on, adopted a wrong procedure and acted contrary to law.</p><p>11. In the case of Government of Andhra Pradesh and others v. Smt. P. Laxmi Devi, AIR 200.SC 1640.the Hon’ble Supreme Court interpreting section 33-1 of the Indian Stamp Act, in paragraphs – 16 and 19 held as follows: “16…………………The use of the word ‘shall’ in Section 33(1) shows that there is no discretion in the authority mentioned in section 33 (1) to impound a document or No.to do so. In our opinion, the word ‘shall’ in section 33(1) does No.mean ‘may’ but means ‘shall’. In other words, it is mandatory to impound a document produced before him……………….”</p><p>“19. It is well settled that stamp duty is a tax, and hardship is No.relevant in construing taxing statutes which are to be construed strictly. As often said, there is no equity in a tax vide Commissioner of Income Tax vs. Firm Muar, AIR 196.SC 1216…………..”</p><p>”</p><p>12. Coupled with the recitals made in the agreement, it would be profitable to refer to paragraph-12 of the plaint filed by the opposite party No.1, wherein it is stated thus:“That on 01.05.2011 at the plaintiff’s residence, as agreed by the parties, plain paper document was prepared. It was scribed by Santosh Kumar Patnaik at the instructions of Defendant nos. 1 to 3. The executants highly enlightened persons, went through the document and signed in presence of all present there. The scribe and the two witnesses were also present and they signed the document after signature of Defendant Nos. 1 to 3. As it was a Sunday and Defendant Nos. 1 to 3 were in a hurry, necessary stamp paper would No.be procured for preparation of the agreement. Nevertheless the document so prepared was a document recording the fact of the oral agreement which was completed one. The document also clearly recited the subject matter of agreement, the amount of consideration, the fact of receipt of advance and delivery of possession in part performance of the contract…………”. (Emphasis supplied) 13. In the case of Avinash Kumar Chauhan v. Vijay Krishna Mishra, AIR 200.SC 1489.the Hon’ble Supreme Court dealing with the question as to whether an agreement to sell would be chargeable as a conveyance, where-under possession has been delivered and whether before impounding the document/payment of the stamp duty along with penalty, such document can be admitted into evidence for any purpose, referring to section 35 (a) of the Stamp Act held that a document of this nature shall No.be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, the document even canNo.be admitted for collateral purpose. In this context, the 10 decision in the case of Ram Rattan v. Parmananad, AIR 194.PC 5.was referred to by the Hon’ble Supreme Court, where the Privy Council held that the words ‘for any purpose’ in section 35 of the Stamp Act should be given their natural meaning and effect and would include a collateral purpose and that an unstamped partition deed canNo.be used to corroborate the oral evidence for the purpose of determining even the factum of partition as distinct from its terms. It is found that the learned court below though referred to the above decisions, on wrong interpretation further taking and extraneous matter into consideration that the plaintiff is a lady, has marked the agreement as Ext. 1 with objection before the same was impounded and the deficit stamp duty was paid.</p><p>14. As held in the case of Avinash Kumar Chauhan (supra), a document No.duly stamped by No.paying adequate stamp duty is No.admissible in evidence in terms of section 35 of the Stamp Act and the said document canNo.also be admissible for co-lateral purposes. Hence, impounding of the said document was proper. Applying the ratio of the said decision, this Court finds that the learned trial court fell into error in returning the findings and issuing the directions as quoted above”</p><p>15. In the result, therefore, this Court quashes the said impugned order dated 27.7.2012 passed in C.S. No.654 of 2011-I and direct to unmark the agreement as Ext. 1 and the said agreement be impounded by directing the plaintiff to pay the stamp duty as per section 35 of the Stamp Act and as per the State Amendment. Applying the said provisions, it would be seen that the stamp duty payable should be calculated at 5% of the value of the consideration for the agreement and the penalty should be calculated ten times of the said amount. The plaintiff should be directed to pay the aforesaid stamp duty first before marking the agreement as an exhibit. On failure to deposit such stamp duty on calculation, the said agreement should No.be marked as an exhibit in the suit No.should it be used for any co-lateral purposes.</p><p>16. The writ petition is allowed. The interim order passed earlier stands vacated. All pending Misc. Cases also stand disposed of. …………………….. M.M. Das, J.Orissa High Court, Cuttack. August 14th ,2013/Biswal. 12',
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			'appellant' => 'Braja Sundar Nanda',
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			'casename' => 'Braja Sundar Nanda Vs. Pravabati Kar and Others',
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			'judgement' => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C) No.14123 OF 201.In the matter of application under Articles 226 and 227 of the Constitution of India ----------Braja Sundar Nanda …… Petitioner -VersusPravabati Kar and others. For Petitioner : For opp. parties: …... Opp. Parties. M/s. Goutam Mukherji, P.Mukherji, A.C. Panda, S.D. Ray and S.Mishra. . Mr. B.H.Mohanty, Sr. Advocate. ----------------------Decided on 14.08.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the defendant No.1 in C.S. No.654 of 2011-I pending before the learned Civil Judge (Senior Division), First Court, Cuttack against the order passed by the said court on 27.7.2012.</p><p>2. The opp. party No.1 filed the aforementioned suit seeking a decree for specific performance of contract directing the defendants 1 to 7 to execute and register a sale deed in her favour in respect of the suit land described in Schedule-A, as delineated Schedule – C, of the in the sketch map plaint, on receiving the given in balance 2 consideration money of Rs.15.00 lakhs within a time to be fixed by the court, failing which for execution of the sale deed through court. On summons being served, the petitioner, who is defendant No.1 appeared and filed his written statement denying the entire allegations made in the plaint. The other defendants have also filed their respective written statement denying the plaint averments. After framing of issues, the suit being ready for hearing, the plaintiff – opp. party No.1 filed her evidence on affidavit. In course of her cross-examination, she produced the alleged plain paper agreement in evidence and sought to mark it as an exhibit. On objection being raised with regard to the authenticity of the said document, which was unstamped and unregistered, the said document has been marked as an exhibit with objection. The petitioner’s contention that the said document could No.have been marked as an exhibit was overruled by the impugned order.</p><p>3. It appears from the impugned order that the learned trial court after hearing the parties appreciated that the document is compulsorily registerable. However, by the impugned order, it held that the plaintiff being a lady is entitled for exemption of court fee and hence, she can be directed to pay the stamp fee along with the registration fee, but at this juncture the plaintiff canNo.be compelled to pay the stamp duty and registration fee along with the penalty which will 3 definitely cause prejudice to the plaintiff. The relevant portion of the impugned order passed by the learned trial court is quoted hereunder:“Both the parties are heard. Admittedly, Ext. 1 has been marked with objection and admissibility of the same will be considered at the time of the hearing of suit and if it is held that Ext. 1 is one agreement for sale of immovable property basing on which possession has been delivered in favour of the plaintiff before or after execution of the agreement, then plaintiff, who is a lady and who is entitled for exemption of court fees, can be directed to pay the stamp fee along with registration fees, as per the amendment of stamp act by Govt. of Orissa, as mentioned earlier. However, at this juncture the plaintiff canNo.be compelled to pay the stamp duty and registration fees along with penalty, as motioned earlier, which will definitely cause prejudice to the plaintiff. Therefore, the plaintiff is directed to pay impounding fees as per the schedule 1-A of the stamp duty on instruments, as per Orissa amendment as mentioned earlier, along with penalty as per section 35 of Indian Stamp Act, 1899 for impounding of the same with an undertaking she shall pay the additional stamp duty and registration charges in the event of her success in the original suit. Accordingly, the office is directed to quantify the amount of impounding in this regard and the plaintiff is directed to pay the same positively, with undertaking, as mentioned earlier. The objection raised by defendants in this regard is accordingly determined. Put up on 30.7.2012 for further crossexamination of PW1 and separate letter be written to the Hon’ble High Court seeking for extension of time for disposal of the suit”..</p><p>4. Mr. Mukherjee, learned counsel for the petitioner raised a question of law with regard to marking of the said agreement as exhibit with objection, inter alia, contending that the said agreement unless impounded canNo.be marked as exhibit and, therefore, directions should be issued to 4 unmark the said agreement which has been marked as Ext. 1 till impounding of the said document.</p><p>5. Mr. B.H. Mohanty, learned senior counsel appearing on behalf of the opp. party No.1, on the contrary, submitted that the agreement can be marked for co-lateral purposes even before the same is impounded.</p><p>6. To appreciate the rival contentions, it would be apt to refer to section 17 of the Registration Act, 1908 (for short, which ‘the Registration Act’) provides documents stated in section 17(1) (a) to (e) that the are compulsorily registerable. Further, in respect of Odisha, two more subsections, i.e. sub-sections (1-f) and (1-g) have been introduced, which provide that agreement to sell immovable property, possession whereof, has been or is handed over to the purported purchaser and Power of attorney relating to transfer of immovable property, possession whereof has been or is handed over to the purported attorney holder are also compulsorily registerable. It is also apt to refer to section 17 (1-A) of the Registration Act, which provides that the documents containing contracts to transfer for consideration, immovable property for the purpose of section 53A any of the Transfer of Property Act, 1882 shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act”</p><p>5. and if such documents are No.registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A. The said amendment came into effect from 24.9.2001. The agreement in question is on a plain paper alleged to have been executed by the petitioner and some of the other defendants, where, it has been stated that on the plaintiff agreeing to purchase the land in question mentioned therein the executants of that agreement, i.e., the petitioner and other defendants agreed to such proposal to sell the said land for a consideration of Rs. 40.00 lakhs and a sum of Rs. 25.00 lakhs was paid in advance to the executants, who gave possession of the property to the plaintiff and executed the agreement agreeing therein that from the date of agreement within a year by accepting the balance consideration money, they will execute the sale deed and register the same failing which the plaintiff can get the same executed by taking shelter of law. Admittedly, the said agreement is on a plain paper and No.duly stamped. Under section 33 of the Indian Stamp Act, 1899, provision is made with regard to instrument No.duly stamped. For brevity, section 33 is quoted hereunder:</p><p>“33. Examination and impounding of instruments.(1) Every person having by law or consent of parties, authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is No.duly stamped, impound the same. 6 (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in (India), when such instrument was executed or first executed: Provided that(a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does No.think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898); (b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf. (3) For the purposes of this section, in cases of doubt(a) [the (State Government)]. may determine what offices shall be deemed to be public offices; and (b) [the [State Government].]. may determine who shall be deemed to be persons in charge of public offices”..</p><p>7. duty In order to examine what would be the stamp payable on the plain paper agreement, which is compulsorily registerable, as in the instant case, which has been marked as Ext. 1 with objection, it would be profitable to refer to Entry No.23 of Schedule-I of the Indian Stamp Act as amended. The said Entry relates to conveyance as defined by section 2 (10) of the said Act No.being a transfer charged or exempted under Entry No.62. The Entry 23 (b) has been 7 amended by the State of Odisha under an order of the Revenue and Disaster Management Department No.Stamp-10/0633267/R.D.M. dated 5.8.2008 wherein, the percentage of stamp payable as per the schedule in the Indian Stamp Act has been reduced from 8 per cent to 7 per cent.</p><p>8. Attention of the Court was drawn to section 35 of the Indian Stamp Act which provides that instruments No.duly stamped inadmissible in evidence. The relevant portion of the said section is quoted hereunder: “35.Instruments No.duly stamped inadmissible in evidence, etc. - xx xx xx Provided that – (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) to (e) 9. In the case of xx xx xx”. Javer Chand and others v. Pukhraj Surana, AIR 196.SC 1655.the Hon’ble Supreme Court held as follows:“4. ……………….Where a question as to the admissibility of a document is raised on the ground that it has No.been stamped or has No.been properly stamped, it has to be decided then and there when the document is tendered in evidence…………….Section 35 is in the nature of a penal provision and has far-reaching effects. Parties to a litigation, where such controversy is raised, 8 have to be circumspect and the party challenging the document has to be alert to see that the document is No.admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case…………..”</p><p>10. With regard to admitting a document with objection to consider its admissibility later on, this Court in the case of Chaturbhuj Sahu v. Dibakar Mallik, 34 (1968) CLT 80.has held that the Court which admitted the document in evidence and marked it as an exhibit and wrongly took the view that he would consider the objection later on, adopted a wrong procedure and acted contrary to law.</p><p>11. In the case of Government of Andhra Pradesh and others v. Smt. P. Laxmi Devi, AIR 200.SC 1640.the Hon’ble Supreme Court interpreting section 33-1 of the Indian Stamp Act, in paragraphs – 16 and 19 held as follows: “16…………………The use of the word ‘shall’ in Section 33(1) shows that there is no discretion in the authority mentioned in section 33 (1) to impound a document or No.to do so. In our opinion, the word ‘shall’ in section 33(1) does No.mean ‘may’ but means ‘shall’. In other words, it is mandatory to impound a document produced before him……………….”</p><p>“19. It is well settled that stamp duty is a tax, and hardship is No.relevant in construing taxing statutes which are to be construed strictly. As often said, there is no equity in a tax vide Commissioner of Income Tax vs. Firm Muar, AIR 196.SC 1216…………..”</p><p>”</p><p>12. Coupled with the recitals made in the agreement, it would be profitable to refer to paragraph-12 of the plaint filed by the opposite party No.1, wherein it is stated thus:“That on 01.05.2011 at the plaintiff’s residence, as agreed by the parties, plain paper document was prepared. It was scribed by Santosh Kumar Patnaik at the instructions of Defendant nos. 1 to 3. The executants highly enlightened persons, went through the document and signed in presence of all present there. The scribe and the two witnesses were also present and they signed the document after signature of Defendant Nos. 1 to 3. As it was a Sunday and Defendant Nos. 1 to 3 were in a hurry, necessary stamp paper would No.be procured for preparation of the agreement. Nevertheless the document so prepared was a document recording the fact of the oral agreement which was completed one. The document also clearly recited the subject matter of agreement, the amount of consideration, the fact of receipt of advance and delivery of possession in part performance of the contract…………”. (Emphasis supplied) 13. In the case of Avinash Kumar Chauhan v. Vijay Krishna Mishra, AIR 200.SC 1489.the Hon’ble Supreme Court dealing with the question as to whether an agreement to sell would be chargeable as a conveyance, where-under possession has been delivered and whether before impounding the document/payment of the stamp duty along with penalty, such document can be admitted into evidence for any purpose, referring to section 35 (a) of the Stamp Act held that a document of this nature shall No.be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, the document even canNo.be admitted for collateral purpose. In this context, the 10 decision in the case of Ram Rattan v. Parmananad, AIR 194.PC 5.was referred to by the Hon’ble Supreme Court, where the Privy Council held that the words ‘for any purpose’ in section 35 of the Stamp Act should be given their natural meaning and effect and would include a collateral purpose and that an unstamped partition deed canNo.be used to corroborate the oral evidence for the purpose of determining even the factum of partition as distinct from its terms. It is found that the learned court below though referred to the above decisions, on wrong interpretation further taking and extraneous matter into consideration that the plaintiff is a lady, has marked the agreement as Ext. 1 with objection before the same was impounded and the deficit stamp duty was paid.</p><p>14. As held in the case of Avinash Kumar Chauhan (supra), a document No.duly stamped by No.paying adequate stamp duty is No.admissible in evidence in terms of section 35 of the Stamp Act and the said document canNo.also be admissible for co-lateral purposes. Hence, impounding of the said document was proper. Applying the ratio of the said decision, this Court finds that the learned trial court fell into error in returning the findings and issuing the directions as quoted above”</p><p>15. In the result, therefore, this Court quashes the said impugned order dated 27.7.2012 passed in C.S. No.654 of 2011-I and direct to unmark the agreement as Ext. 1 and the said agreement be impounded by directing the plaintiff to pay the stamp duty as per section 35 of the Stamp Act and as per the State Amendment. Applying the said provisions, it would be seen that the stamp duty payable should be calculated at 5% of the value of the consideration for the agreement and the penalty should be calculated ten times of the said amount. The plaintiff should be directed to pay the aforesaid stamp duty first before marking the agreement as an exhibit. On failure to deposit such stamp duty on calculation, the said agreement should No.be marked as an exhibit in the suit No.should it be used for any co-lateral purposes.</p><p>16. The writ petition is allowed. The interim order passed earlier stands vacated. All pending Misc. Cases also stand disposed of. …………………….. M.M. Das, J.Orissa High Court, Cuttack. August 14th ,2013/Biswal. 12',
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		'appellant' => 'Braja Sundar Nanda',
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		'casename' => 'Braja Sundar Nanda Vs. Pravabati Kar and Others',
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		'judgement' => '<p>ORISSA HIGH COURT: CUTTACK. W.P.(C) No.14123 OF 201.In the matter of application under Articles 226 and 227 of the Constitution of India ----------Braja Sundar Nanda …… Petitioner -VersusPravabati Kar and others. For Petitioner : For opp. parties: …... Opp. Parties. M/s. Goutam Mukherji, P.Mukherji, A.C. Panda, S.D. Ray and S.Mishra. . Mr. B.H.Mohanty, Sr. Advocate. ----------------------Decided on 14.08.2013 -------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.This writ petition has been filed by the defendant No.1 in C.S. No.654 of 2011-I pending before the learned Civil Judge (Senior Division), First Court, Cuttack against the order passed by the said court on 27.7.2012.</p><p>2. The opp. party No.1 filed the aforementioned suit seeking a decree for specific performance of contract directing the defendants 1 to 7 to execute and register a sale deed in her favour in respect of the suit land described in Schedule-A, as delineated Schedule – C, of the in the sketch map plaint, on receiving the given in balance 2 consideration money of Rs.15.00 lakhs within a time to be fixed by the court, failing which for execution of the sale deed through court. On summons being served, the petitioner, who is defendant No.1 appeared and filed his written statement denying the entire allegations made in the plaint. The other defendants have also filed their respective written statement denying the plaint averments. After framing of issues, the suit being ready for hearing, the plaintiff – opp. party No.1 filed her evidence on affidavit. In course of her cross-examination, she produced the alleged plain paper agreement in evidence and sought to mark it as an exhibit. On objection being raised with regard to the authenticity of the said document, which was unstamped and unregistered, the said document has been marked as an exhibit with objection. The petitioner’s contention that the said document could No.have been marked as an exhibit was overruled by the impugned order.</p><p>3. It appears from the impugned order that the learned trial court after hearing the parties appreciated that the document is compulsorily registerable. However, by the impugned order, it held that the plaintiff being a lady is entitled for exemption of court fee and hence, she can be directed to pay the stamp fee along with the registration fee, but at this juncture the plaintiff canNo.be compelled to pay the stamp duty and registration fee along with the penalty which will 3 definitely cause prejudice to the plaintiff. The relevant portion of the impugned order passed by the learned trial court is quoted hereunder:“Both the parties are heard. Admittedly, Ext. 1 has been marked with objection and admissibility of the same will be considered at the time of the hearing of suit and if it is held that Ext. 1 is one agreement for sale of immovable property basing on which possession has been delivered in favour of the plaintiff before or after execution of the agreement, then plaintiff, who is a lady and who is entitled for exemption of court fees, can be directed to pay the stamp fee along with registration fees, as per the amendment of stamp act by Govt. of Orissa, as mentioned earlier. However, at this juncture the plaintiff canNo.be compelled to pay the stamp duty and registration fees along with penalty, as motioned earlier, which will definitely cause prejudice to the plaintiff. Therefore, the plaintiff is directed to pay impounding fees as per the schedule 1-A of the stamp duty on instruments, as per Orissa amendment as mentioned earlier, along with penalty as per section 35 of Indian Stamp Act, 1899 for impounding of the same with an undertaking she shall pay the additional stamp duty and registration charges in the event of her success in the original suit. Accordingly, the office is directed to quantify the amount of impounding in this regard and the plaintiff is directed to pay the same positively, with undertaking, as mentioned earlier. The objection raised by defendants in this regard is accordingly determined. Put up on 30.7.2012 for further crossexamination of PW1 and separate letter be written to the Hon’ble High Court seeking for extension of time for disposal of the suit”..</p><p>4. Mr. Mukherjee, learned counsel for the petitioner raised a question of law with regard to marking of the said agreement as exhibit with objection, inter alia, contending that the said agreement unless impounded canNo.be marked as exhibit and, therefore, directions should be issued to 4 unmark the said agreement which has been marked as Ext. 1 till impounding of the said document.</p><p>5. Mr. B.H. Mohanty, learned senior counsel appearing on behalf of the opp. party No.1, on the contrary, submitted that the agreement can be marked for co-lateral purposes even before the same is impounded.</p><p>6. To appreciate the rival contentions, it would be apt to refer to section 17 of the Registration Act, 1908 (for short, which ‘the Registration Act’) provides documents stated in section 17(1) (a) to (e) that the are compulsorily registerable. Further, in respect of Odisha, two more subsections, i.e. sub-sections (1-f) and (1-g) have been introduced, which provide that agreement to sell immovable property, possession whereof, has been or is handed over to the purported purchaser and Power of attorney relating to transfer of immovable property, possession whereof has been or is handed over to the purported attorney holder are also compulsorily registerable. It is also apt to refer to section 17 (1-A) of the Registration Act, which provides that the documents containing contracts to transfer for consideration, immovable property for the purpose of section 53A any of the Transfer of Property Act, 1882 shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act”</p><p>5. and if such documents are No.registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A. The said amendment came into effect from 24.9.2001. The agreement in question is on a plain paper alleged to have been executed by the petitioner and some of the other defendants, where, it has been stated that on the plaintiff agreeing to purchase the land in question mentioned therein the executants of that agreement, i.e., the petitioner and other defendants agreed to such proposal to sell the said land for a consideration of Rs. 40.00 lakhs and a sum of Rs. 25.00 lakhs was paid in advance to the executants, who gave possession of the property to the plaintiff and executed the agreement agreeing therein that from the date of agreement within a year by accepting the balance consideration money, they will execute the sale deed and register the same failing which the plaintiff can get the same executed by taking shelter of law. Admittedly, the said agreement is on a plain paper and No.duly stamped. Under section 33 of the Indian Stamp Act, 1899, provision is made with regard to instrument No.duly stamped. For brevity, section 33 is quoted hereunder:</p><p>“33. Examination and impounding of instruments.(1) Every person having by law or consent of parties, authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is No.duly stamped, impound the same. 6 (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in (India), when such instrument was executed or first executed: Provided that(a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does No.think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898); (b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf. (3) For the purposes of this section, in cases of doubt(a) [the (State Government)]. may determine what offices shall be deemed to be public offices; and (b) [the [State Government].]. may determine who shall be deemed to be persons in charge of public offices”..</p><p>7. duty In order to examine what would be the stamp payable on the plain paper agreement, which is compulsorily registerable, as in the instant case, which has been marked as Ext. 1 with objection, it would be profitable to refer to Entry No.23 of Schedule-I of the Indian Stamp Act as amended. The said Entry relates to conveyance as defined by section 2 (10) of the said Act No.being a transfer charged or exempted under Entry No.62. The Entry 23 (b) has been 7 amended by the State of Odisha under an order of the Revenue and Disaster Management Department No.Stamp-10/0633267/R.D.M. dated 5.8.2008 wherein, the percentage of stamp payable as per the schedule in the Indian Stamp Act has been reduced from 8 per cent to 7 per cent.</p><p>8. Attention of the Court was drawn to section 35 of the Indian Stamp Act which provides that instruments No.duly stamped inadmissible in evidence. The relevant portion of the said section is quoted hereunder: “35.Instruments No.duly stamped inadmissible in evidence, etc. - xx xx xx Provided that – (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) to (e) 9. In the case of xx xx xx”. Javer Chand and others v. Pukhraj Surana, AIR 196.SC 1655.the Hon’ble Supreme Court held as follows:“4. ……………….Where a question as to the admissibility of a document is raised on the ground that it has No.been stamped or has No.been properly stamped, it has to be decided then and there when the document is tendered in evidence…………….Section 35 is in the nature of a penal provision and has far-reaching effects. Parties to a litigation, where such controversy is raised, 8 have to be circumspect and the party challenging the document has to be alert to see that the document is No.admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case…………..”</p><p>10. With regard to admitting a document with objection to consider its admissibility later on, this Court in the case of Chaturbhuj Sahu v. Dibakar Mallik, 34 (1968) CLT 80.has held that the Court which admitted the document in evidence and marked it as an exhibit and wrongly took the view that he would consider the objection later on, adopted a wrong procedure and acted contrary to law.</p><p>11. In the case of Government of Andhra Pradesh and others v. Smt. P. Laxmi Devi, AIR 200.SC 1640.the Hon’ble Supreme Court interpreting section 33-1 of the Indian Stamp Act, in paragraphs – 16 and 19 held as follows: “16…………………The use of the word ‘shall’ in Section 33(1) shows that there is no discretion in the authority mentioned in section 33 (1) to impound a document or No.to do so. In our opinion, the word ‘shall’ in section 33(1) does No.mean ‘may’ but means ‘shall’. In other words, it is mandatory to impound a document produced before him……………….”</p><p>“19. It is well settled that stamp duty is a tax, and hardship is No.relevant in construing taxing statutes which are to be construed strictly. As often said, there is no equity in a tax vide Commissioner of Income Tax vs. Firm Muar, AIR 196.SC 1216…………..”</p><p>”</p><p>12. Coupled with the recitals made in the agreement, it would be profitable to refer to paragraph-12 of the plaint filed by the opposite party No.1, wherein it is stated thus:“That on 01.05.2011 at the plaintiff’s residence, as agreed by the parties, plain paper document was prepared. It was scribed by Santosh Kumar Patnaik at the instructions of Defendant nos. 1 to 3. The executants highly enlightened persons, went through the document and signed in presence of all present there. The scribe and the two witnesses were also present and they signed the document after signature of Defendant Nos. 1 to 3. As it was a Sunday and Defendant Nos. 1 to 3 were in a hurry, necessary stamp paper would No.be procured for preparation of the agreement. Nevertheless the document so prepared was a document recording the fact of the oral agreement which was completed one. The document also clearly recited the subject matter of agreement, the amount of consideration, the fact of receipt of advance and delivery of possession in part performance of the contract…………”. (Emphasis supplied) 13. In the case of Avinash Kumar Chauhan v. Vijay Krishna Mishra, AIR 200.SC 1489.the Hon’ble Supreme Court dealing with the question as to whether an agreement to sell would be chargeable as a conveyance, where-under possession has been delivered and whether before impounding the document/payment of the stamp duty along with penalty, such document can be admitted into evidence for any purpose, referring to section 35 (a) of the Stamp Act held that a document of this nature shall No.be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, the document even canNo.be admitted for collateral purpose. In this context, the 10 decision in the case of Ram Rattan v. Parmananad, AIR 194.PC 5.was referred to by the Hon’ble Supreme Court, where the Privy Council held that the words ‘for any purpose’ in section 35 of the Stamp Act should be given their natural meaning and effect and would include a collateral purpose and that an unstamped partition deed canNo.be used to corroborate the oral evidence for the purpose of determining even the factum of partition as distinct from its terms. It is found that the learned court below though referred to the above decisions, on wrong interpretation further taking and extraneous matter into consideration that the plaintiff is a lady, has marked the agreement as Ext. 1 with objection before the same was impounded and the deficit stamp duty was paid.</p><p>14. As held in the case of Avinash Kumar Chauhan (supra), a document No.duly stamped by No.paying adequate stamp duty is No.admissible in evidence in terms of section 35 of the Stamp Act and the said document canNo.also be admissible for co-lateral purposes. Hence, impounding of the said document was proper. Applying the ratio of the said decision, this Court finds that the learned trial court fell into error in returning the findings and issuing the directions as quoted above”</p><p>15. In the result, therefore, this Court quashes the said impugned order dated 27.7.2012 passed in C.S. No.654 of 2011-I and direct to unmark the agreement as Ext. 1 and the said agreement be impounded by directing the plaintiff to pay the stamp duty as per section 35 of the Stamp Act and as per the State Amendment. Applying the said provisions, it would be seen that the stamp duty payable should be calculated at 5% of the value of the consideration for the agreement and the penalty should be calculated ten times of the said amount. The plaintiff should be directed to pay the aforesaid stamp duty first before marking the agreement as an exhibit. On failure to deposit such stamp duty on calculation, the said agreement should No.be marked as an exhibit in the suit No.should it be used for any co-lateral purposes.</p><p>16. The writ petition is allowed. The interim order passed earlier stands vacated. All pending Misc. Cases also stand disposed of. …………………….. M.M. Das, J.Orissa High Court, Cuttack. August 14th ,2013/Biswal. 12',
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LAW: section 35, Indian Stamp Act, section 17, the Registration Act, the Registration Act, section 17, the Registration Act, section 33, the Indian Stamp Act, section 33, Chapter XII, Chapter XXXVI, the Indian Stamp Act, section 2, section 35, the Indian Stamp Act, the Indian Stamp Act, section 33, section 35, the Stamp Act, section 35, the Stamp Act, section 35, the Stamp Act, section 35, the Stamp Act, the State Amendment

PERSON: W.P.(C, Petitioner -VersusPravabati, Kar, Opp, A.C. Panda, S.D. Ray, B.H.Mohanty, M.M. DAS M. M. DAS, Cuttack, Schedule, Orissa, Mukherjee, B.H. Mohanty, impounded.6, xx xx xx, Javer Chand, Pukhraj Surana, Chaturbhuj Sahu v. Dibakar Mallik, P. Laxmi Devi, No.to, Firm Muar, Defendant Nos, Defendant Nos, Vijay Krishna Mishra, Ram Rattan v., Misc, M.M. Das, Cuttack

CARDINAL: 201.In, 14.08.2013, 1, 7, 2, 3, 1, 1, one, 1, 4, 4, 1, two, 1-f, 24.9.2001, 40.00, 25.00, brevity, 6, 2, 5, 3, 1, 10, 7, 5.8.2008, 7, five, ten, five, ten, 9, No.been, 8, 200.SC, 33, 16 and 19, 16, 1, 01.05.2011, 1 to 3, two, 1 to 3, 1 to 3, 13, 200.SC, 10, 194.PC, 1, 1, ten, 12

PRODUCT: Articles 226 and 227 of the Constitution of India ----------Braja, No.1, No.1, No.1, No.1, No.1, No.mean, paragraph-12, No.1

ORG: HONOURABLE, Civil Judge (Senior Division, First Court, Schedule-A, Ext, Ext, Govt, inter alia, canNo.be, Ext, the Transfer of Property Act, Magistrate, a Criminal Court, a High Court, Court, the (State Government, State Government, Ext, Act No.being, the State of Odisha, Disaster Management Department, Court, Supreme Court, No.admitted, Court, Court, Court, CLT, Court, Government of Andhra Pradesh, Supreme Court, Income Tax, Santosh Kumar Patnaik, No.be, Emphasis, Supreme Court, No.be, canNo.be, Supreme Court, the Privy Council, Ext, Court, Court, Ext, No.be

GPE: C.S., Orissa, Odisha, India, Avinash, Parmananad, C.S.

DATE: 27.7.2012.2, the impugned order.3, 1899, document.5, 1908, 1882, a year, 1899, 1898, follows:“4, 35, 34, 1968, 196.SC 1216, Sunday, 27.7.2012, August 14th ,2013/Biswal

NORP: Rs.15.00

ORDINAL: first, first

MONEY: 8 per cent

FAC: Avinash Kumar Chauhan

PERCENT: 5%