KULDIP KAUR Vs. PRAKASH CHAND KHURANA

JUDGEMENT

(1.) Shri Prakash Chand Khurana respondent mortgaged his property at plot No. 27, Rajindra Park, Pusa Road) New Delhi with Shri Harnam Singh Sachdev, for a sum of Rs. 22,000.00 vide registered Mortgage Deed dated 17th January, 1970. The Mortgage Deed contained an arbitration clause. Disputes arose and therefore, Shri Harnam Singh Sachdev on 9th December, 1971 filed an application under section 20 of the Arbitration Act for reference of the disputes to the................................ ............... ......... ............... ..................named arbitrator.Shri Krishan Lal Dhall s/o. Shri Anant Ram Dhall, 5/39, W.E.A. Karol Bagh, New Delhi. The Court vide order dated 6th April, 1977 accepted the application and referred the matter to the said arbitrator. During the pendency of arbitration proceedings the time for making the award expired and applications were made from time to time under section 28 of the Arbitration Act for extension of time. Last such application was made on 15th March, 1979 and the Court extended time unto 30th November, 1979 for the making of the award.

(2.) Shri Harnam Singh Sachdev, claimant died on I 1th September, 1979 during the pendency of albitiation proceedings. The nine petitioners who are sons and daughters of Shri Harnam Singh Sachdev deceased-claimant filed an application under order 22 Rule 3 of the Code of Civil Procedure on 30th November, 1979 through their general attorney Shri Jawahar Singh Gambhir constituted as such by a general power of attorney dated 28th September, 1979 executed at Bangkok. The petitioners through their said attorney also filed an application under section 28 of the Arbitration Act on 30th November, 1979 for extension of time for making the award. The general power of attorney duly attested by P.V. Lalya Third Secretary (Consular) of the Embassy of India, Bangkok in favour of Shri Jawahar Singh Gambhir was filed before the trial Court. The respondent resisted both the applications for substitution and extension of time on the ground that the applications were not signed, verified and filed by a duly authorised person. It has been denied that Shri Jawahar Singh Gambhir is the general attorney of the applicants. It has been further alleged that the arbitration proceedings had abated as application for substitution was not filed within time. The trial Court dismissed the two applications by order dated 23rd January, 1982 on the ground that the power of attorney was not duly stamped and the stamp was not properly cancelled. It has been observed that the power of attorney was not on the stamp paper but it had been typed on aplace paper and the first leaf of the document had been pasted on the stamp paper of Rs. 10.00 . The trial Court refused to read the power of attorney as evidence. Consequently it was held that the person who signed the applications on behalf of the nine petitioner-heirs of the deceased was not authorised to sign and verify the applications and therefore dismissed the applications. Hence this revision.

(3.) The learned counsel for the petitioners submits that the trial Court was wrong in refusing to receive the general power of attorney Ex. A-3 in evidence. A perusal of the power of attorney shows that initially it Was executed on a plane paper which was duly attested by the Third Secretary (Consular) of the Embassy of India at Bangkok. The first page of this power of attorney is pasted on an Indian stamp paper of Rs. 10.00 . It appears that this stamp paper was purchased in Indian on 15th September, 1979. It if not clear whether be first leaf of the power of attorney was pasted when it was received in India or the stamp paper was sent to Bangkok Thailand and the first page was pasted there. It is however, immaterial. The power of attorney was received in India. It ought to have been stamped within the meaning of section 18 of the Indian Stamps Act with the stamp duty payable in India within a period of three months after the receipt of the powers of attorney in India. It appears that no step was taken for getting the power f attorney stamped in accordance with section 18 of the Indian Stamp Act. The power of attorney was however, filed in the trial Court and the evidence was recorded. The sole question is : what procedure ought to have been followed by the trial Court if the power of attorney was not duly stamped or the stamp paper was not property cancelled. The learned counsel for the petitioners submits that although the first leaf the document i.e. general power of attorney is pasted on the stamp paper which was purchased in India and it was not properly cancelled even then the document was admissible in evidence under section 35 of the Indian Stamp Act. This section irovides that an instrument not duly stamped shall not be received in evidence unless the duty pa) able on such a document together with penalty quivalent to ten times of the duty payable on the instrument is paid. The main section provides that a document not duly stamped shall not be admitted in evidence but the proviso provides that the document not duly stamped shall be admitted in evidence on payment of stamp duty and penalty. In Lachmi Narayan Agarwala and others v. Rameshwar Prasad Singh and others, 1924 Privy Council 221(1) it has been held that on payment of stamp and penalty instrument becomes effective. It has been observed, "that proviso (a) of section 35 of the Indian Stamp Act 1899 is of equal ambit with the body of the Section, and that just as an instrument cannot be acted upon that is to say, nothing can be recovered under it, unless it has a proper stamp, so the proviso provides that if there is not a proper stamp it may be put on afterwards on payment of a penalty and the instrument then becomes effective." In Kedarmal Raghunath v. Ratiram and another, A.I.R. 1935 Nagpur 54 and Nath Bank Ltd. v. Andhar Manick Tea Co. Ltd., A I.R: 1960 Calcutta 779 it has been held that a document can be impounded and should be admitted in evidence even if section 18 of the stamp Act is applicable. This I am of the opinion that the general power of attorney Ex. A-3 though not properly stamped was liable to be impounded and admitted in evidence on payment of the stamp duty and penalty thereof. The proper stamp duty; on the genera power of attorney is Rs. 10.00 and the penally under section 35 of the Indian Stamp Act would be Rs. 100.00 . Thus the general power of attorney Ex.A-3 is to be admitted in evidence on payment of Rs. 110.00 as stamp duty and penalty within the meaning of section 35 of the Indian Stamp Act.