DEEPAK CORPORATION Vs. PUSHPA PRAHLAD NANDERJOG

JUDGEMENT

(1.) THIS revision application is directed against the order of 26th April, 1989 of the Bombay City Civil Court in S. C. Suit No. 2603 of 1984 holding that the document described as "consent terms" dated 21 February, 1989 tendered to the Court along with application dated 21 February, 1989 filed by the petitioners for modification of the undertaking given by them under Clause 5 of the earlier consent terms dated 20-12-1984 was liable to be impounded and directing the Registrar to forward the same to the Collector for recovery of the stamp duty and penalty and registration charges.

(2.) THE material facts, briefly stated, are as follows : The respondent, Pushpa Prahlad, had filed a suit against the petitioners for permanent injunction restraining them from interfering with her peaceful use and enjoyment of the suit premises and from taking any steps to dispossess her therefrom except by due process of law. The said suit, which was numbered as S. C. Suit No. 2603 of 1984, was settled between the parties and consent terms dated 20 December, 1984 were filed. By the said consent terms the petitioners (original defendants) agreed and undertook to offer to the respondent (original plaintiff) a self contained flat of 600 sq. ft. in the new building to be constructed by the petitioners on the suit property at the rate of Rs. 225/- per sq. ft. and to deliver possession of the said flat within two years from the date of commencement of the construction. The above suit was decreed by the Court on 20 December, 1984 in accordance with the said consent terms. Thereafter on 21 February, 1989, the parties signed fresh consent terms in modification and part adjustment of the above decree. An application was filed on 21 February,1989 before the Bombay City Civil Court under Order 21, Rule 2 of C. P. C. for recording the fresh consent terms and relieving the petitioners from the undertaking given by them to the Court under Clause 5 of the original consent terms and the decree passed in terms thereof. Fresh consent terms dated 21 February, 1989 were tendered to the Court along with the above application for the purpose of recording the part adjustment of the decree to the satisfaction of the plaintiff. The Court took cognizance of the said document. The plaintiff as well as the partner of the defendants who had put their signatures on the said document admitted their respective signatures and contents of the document. However, before acting upon the said document, the Court made a query to Counsel for the petitioners (original defendants) whether the document was sufficiently stamped and whether it attracted the provisions of the Indian Registration Act. Counsel for the petitioners instead of answering the query informed the Court on 24 February, 1989 that the petitioners wanted to withdraw their application dated 22 February, 1989 itself and not to press for order thereon. On the above prayer of the Counsel, the trial Court passed the following order on 24 February, 1989 : advocate for the defendant states that he wants to withdraw the application i. e. 22-2-1989 and therefore, he does not press for orders. With the above, I am not passing any orders but it will be considered whether it is necessary to impound the document by sending it to the Collector of Stamps as the parties have used it as evidence and tendered the consent terms as their agreement before this Court. In this respect separate orders will be passed. Mr. Rambhia wants to argue on this point. Adjourned to 10-3-1989 for orders at 2. 45 p. m. " (Emphasis supplied)

(3.) LATER, on hearing the parties on the question whether it was necessary for the Court to forward the document to the Collector for recovery of stamp duty, penalty and registration charges, it decided the issue against the petitioners by its order dated 26 April, 1989 which is the subject matter of challenge in this revision application. The trial Court recorded a finding that the document in question had been tendered before it as evidence. It was observed that the advocate for the defendants (the petitioners herein) by written application dated 22 February, 1989 had tendered the consent terms as evidence of fresh agreement between the parties for modification of the decree and for recording part adjustment of the decree. Not only that, the parties also admitted their respective signatures as also the contents of the said document before the Court. It was only when a question was raised by the Court whether the document was adequately stamped or it was liable to additional stamp duty, penalty and registration charges that the learned Advocate was instructed not to press the application. Such an attempt by the parties, according to the trial Court, was not only deceptive but gross dishonest attempt to avoid stamp duty and penalty. The Court distinguished the various decisions relied upon by the Counsel for the petitioners and observed that they were not applicable as, unlike in those cases, in the present case the consent terms dated 21 February, 1989 were tendered before the Court as evidence of agreement between the parties for adjustment of part of the decree. Not only that, the parties had confirmed their respective signatures as well as the contents of the document in question. The consent terms were duly produced before the Court as evidence. It was only when before marking it as an exhibit the Court wanted to impound the same and recover the stamp duty and penalty, an attempty was made to disarm the Court by seeking to withdraw the application itself. The trial Court observed that such action of the party cannot affect the power of the Court to impound an inadequately stamped document duly produced before it. The trial Court, therefore, held that the document was liable to be impounded and accordingly directed the Registrar to send the same to the Collector for recovery of stamp duty, penalty and registration charges. It is this order which is the subject matter of challenge in this revision petition.