SOUMENDRA KUMAR GAHIR Vs. E.NAGAMANI & OTHERS

JUDGEMENT

(1.) This Civil Miscellaneous Petition involves setting aside the order dated 28.7.2015 passed by the Civil Judge (Senior Division), Bargarh in Civil Suit No. 110 of 2000 available at Annexure-3 rejecting a request at the instance of defendant No. 1 under Section 35 (a) of the Stamp Act to determine the required stamp duty and penalty, if any, involving the document dated 8.11.1999 to be admitted in the evidence by the defendant No. 1.

(2.) Heard Sri B. Panigrahi, learned counsel for the petitioner. None appeared for the opposite parties during hearing of the matter in spite of appearance of a set of counsel for the opposite parties.

(3.) Short background involved in the case is that opposite party No. 1 and the petitioner involved in an unregistered agreement dated 1.1999 prepared for the purpose of transfer/sale of M/s. Bijay Laxmi Trade Combine, a proprietary firm in favour of the petitioner for consideration amount of Rs. 70,50,001/- out of which the petitioner already paid a sum of Rs. 20,00,000/- to the opposite party No. 1. It is subsequently found by the petitioner that the said firm had some infirmities as it was already mortgaged with a bank and the property was held by the opposite party No. 1 along with her husband but the agreement was executed by opposite party No. 1 only. When the petitioner wanted to withdraw the agreement, the opposite party No. 1 acknowledged her difficulty and consequently entered into cancellation of agreement dated 1.1999 vide another agreement dated 8.11.1999 upon making payment of a sum of Rs. 2,00,000/-, promising therein to pay the balance advance amount of Rs. 18,00,000 in monthly instalments. The second agreement entered herein was also an unregistered one and also not duly stamped. Finding opposite party No. 1 not clearing the advance amount within the reasonable time, the petitioner was constrained to file a suit for specific performance of contract involving the opposite party No. 1 vide Civil Suit No. 110 of 2000 on the file of Civil Judge (Senior Division), Bargarh. The agreement dated 1.1999 though unregistered and not duly stamped but already exhibited as Ext.2. The petitioner in order to prove his case relied upon the evidence of D.W.1 i.e. the scribe of the agreement dated 8.11.1999. The opposite party No. 1 though did not dispute the signature or the execution of the agreement dated 8.11.1999, filed an objection on 26.2015 stating that the same cannot be exhibited as the same is inadmissible due to lack of proper stamp. Petitioner further contended that the agreement since is not a bond but is a continuation of the previous contract hence ought to be exhibited. It is thus alleged that the trial court failed to appreciate the difference between a document in acknowledgement and a bond. It is for this reason, the petitioner filed an application under Section 35 read with Section 61 of the Stamp Act to pay the deficit stamp duty with penalty on the document dated 1.1999. The court below under the observation that the agreement dated 1.1999 since a document agreeing to sale the said property with terms and conditions stipulated therein as a result of negotiation between the parties since not coming within the term of conveyance and as the agreement to sale of immovable property was not a deemed conveyance prior to Orissa Amendment Act, 2001 came into force since 2003 declined to pass order for impounding of the document. Finding no other remedy, petitioner was constrained to file an application under Section 35(a) of the Stamp Act to pay the deficit stamp duty with penalty on the document dated 8.11.1999 executed by opposite party No. 1 in order to regularize the agreement dated 8.11.1999. Opposite party No. 1 raising objection taken a technical ground of limitation and contended that the document was required to be impounded and stamped within three years of its registration but under the pretext that the document is unregistered till date submitted that provision contained in Section 33-1(a) of the Stamp Act does not apply to the present case. The trial court refused to impound the document on the premises that it was not stamped within stipulated time and no explanation has been also put forth by the petitioner to explain such delay.