S P PADMAVATHI Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE petitioner challenges the proceedings of the second respondent dated 18-10-1990 negativing the contention of the petitioner with regard to the payment of stamp duty for registering a document. THE facts leading to the filing of the writ petition may be briefly stated as follows:

(2.) THE petitioner alleges in the affidavit filed in support of her writ petition that the interpretation given by the second respondent to Ss. 2(6), 17 and 47A of the Stamp Act are not correct and stated that the second respondent has not applied his mind at all. It is stated that sub-S. (6) of S. 2 of the Stamp Act as amended defines ?Chargeable? and it refers to the date of the executive which fixed the price and the objection could not be taken when that price was below the market rate or the Collector 's guidelines as on that date and the guidelines as on the date of the registration in the instant case were inoperative and irrelevant. It is also stated that S. 17 of the Stamp Act defines that the document should be stamped before or at the time of execution and S. 47A of the Stamp Act cannot be invoked to the facts of the present case because the second respondent cannot have any suspicion with regard to the valuation. THE petitioner submits that the price had been fixed on the date of the sale agreement which merged in the decree and the decree in law dates back to the time of the institution of the suit and in the instant case, to the date of the agreement which gave rise to the suit. It is further submitted that if the stamp duty and registration charges are to be paid as on the date of the registration of the document, the vendors can as wall claim the same benefit and demand the price that prevails at the time of the conclusion of the litigation, and as such, the suit for spefic performance would become meaningless. It is stated in the affidavit that Art. 23 of the Stamp Act, First Schedule, the sale consideration was agreed to between the parties in respect of the property at Rs. 2,75,000 and the market value has not been defined in the Stamp Act and hence the respondents should have accepted the market value of the property as the value that was disclosed at the earliest point of time in the agreement for sale and also in the proceedings for specific performance and a reference to the dec ision reported in 1982-2-M.L.J. 23 has also been made. It is alleged that the Indian Stamp (Madras Amendment) Act 1967 did not shift the chargeable event from the ?instrument? to ?market value?, and the respondents have no right to ask for the stamp duty on the market value instead of on the instrument which was registered after litigation, and normally the consideration stated as the market value should be taken to be the correct value unless the circumstances exist which suggest fradulent evasion. It is stated further that the petitioner had disclosed the sale consideration in the agreement for sale itself and as such there cannot be any suspicion warranting any fraudulent evasion of duty and that the respondents have applied the Amending Act 1967, in a haphazard way without any application of mind and without appreciating the sale consideration disclosed in the decree passed by this Court.

(3.) THE next point that has to be decided is what is the scope of the suit for specific performance; in other words, what exactly the remedy of the specific relief. A passage in Specific Performance by Gareth Jones & Williams Goodheart, Chapter I, 1986, Edn., is as follows: ?Specific performance is a decree of the court which compels the defendant personally to do what he promised to do. If the defendant disobeys, the court had adequate remedies to compel compliance; for example, it has the power to nominate a person to execute an instrument; if the defendant refuses to do so, and in the last resort, he may be punished by being committed for contempt. THE remedy for specific performance is an equitable remedy which the court will grant if the plaintiff requests it and if it is just to do so. No plaintiff is, therefore, entitled to specific performance as of right. THE court gives a specific performance instead of damages only when it can by that means do more perfect and complete justice. But the discrection to grant or refuse specific performance is not exercised cariciously but with regard to principles established by provision authorities.? Again, in Halsbury's Law of England, in paragraph 401. page 275, 4th Edn., Volume 44, it is stated as follows: ?THE remedy by specific performance is an equitable relief, given by the court to enforce against a defendant the duty of doing what he agreed by contract to do; a plaintiff may, therefore, obtain judgment for specific performance even though there has not in the strict sense, been any default by the defendant before the issue of the writ.? As such, the specific performance is an equitable remedy given by the court to enforce against the defendant the duty of doing what he agreed by contract to do. That is all. Obtaining a decree for specific performance does not mean and cannot also, in my view, used as a lever to avoid the proper stamp duty to be paid on the instrument to be executed and registered nearly after five years. On the facts of the instant case, just because a decree for specific performance is passed it does not mean that it is binding on the authorities under the Registration Act as well as the Stamp Act. THEy are bound by the provisions of the Act and when a person produces an instrument for registration, it is open to them to arrive at the duty based on the market value on the date of the registration of the document. In fact, S. Ramalingam, J., as reported in R. Thiagasundaram v. THE State of Tamil Nadu and others A.I.R. 1991 Mad. 82 has held that when the State is not a party, the order of the Civil Court regarding the market value is not binding on the Registering Authority. I am also supported by the views expressed by a Division Bench of this Court and also by the judgment of Balasubramanyan, J., which has been extracted above.