SUDHIR JINDAL Vs. STATE OF HARYANA

JUDGEMENT

(1.) The petitioner seeks for refund of the value of stamps which, according to him, became "spoiled" on account of inability to get the document registered by a supervening event of the General Power of Attorney, who had executed the document lost the power by revocation of the GPA on 24.01.2006. Some more facts are necessary:

(2.) The document was prepared for execution of a sale on 13.09.2005 and presented for registration. It appears that NOC from HUDA was required to be obtained by the Registering Officer and communicated to him orally, upon which the petitioner had taken back the original document and sought for NOC on 19.01.2006. On 24.01.2006, the GPA, who had executed the document lost the power to represent. On revocation of the power of attorney, the HUDA passed an order on 03.02.2006 that it was not possible to issue a NOC in view of the loss of authority by GPA. This communication from HUDA is said to have been received by the petitioner on 10.02.2006. The petitioner had made a representation by a letter to the Registering Officer on 10.03.2006 along with the sale deed seeking for refund of the value of stamps. When there was no response, the writ petition had been filed and at the asking of the Court, Sh. Sharma took notice on behalf of the State. In the meanwhile, the State has also replied to the representation pointing out that the plea for return of the value of the stamps was being rejected on account of the fact that it had not been submitted within two months from the date of execution of the sale deed and therefore, the claim could not be entertained.

(3.) The relevant provisions for considering the issues raised in the case are Section 49 and 50 of the Indian Stamp Act, 1899. Section 49 provides for allowance for "spoiled stamps" and sets out the different circumstances when a document could be said to be spoiled. Section 49 refers to stamps used for an instrument executed by any party and sets out eight circumstances among which Sub-clause (2) and (5) become relevant, for these two clauses are relied on by the petitioner and the respondent respectively. Sub-clause (2) refers to a situation where the party, "has been afterwards found unfit, by reason of any error or mistake therein, for the purpose originally intended; Sub-clause (5) refers to a party who, "by reason of the death of any person by whom it is necessary that it should be executed, without having executed the same, or of the refusal of any such person to execute the same, cannot be completed so as to effect the intended transaction in the form proposed." Between these two clauses, the contention of the petitioner is that Clause (2) shall be applied, for the stamps had become spoiled by a party, who had become unfit to execute the document. The requirement of the Section is such unfit-ness must arise by reason of mistake or error therein for the purpose originally intended and in this case the original intention was to allow the GPA to act as such and had by reason of the revocation of the power he had become unfit. In my view, an expression "an error or mistake" used in Sub-section (2) is not an expression of art but it should be rendered flexible enough to admit even a situation of when the power is subsequently withdrawn for Clause 5 which the learned Counsel for the State relies on refers to a situation of a party, who refused to act under the instrument. Here it is not a case of refusal, for even if the GPA had not refused and he had consented to admit execution, the document cannot be valid for the power did not exist and it had lapsed. Nor the other situations coming within Sub-clause (5) operates such as the refusal to advance any money or refusal or non-acceptance of any office granted for the intended purpose. If, therefore, the stamp had become incapable of use for the purpose for which it was intended then Section 50 sets out the period of limitation. Section 50 contemplates three situations as under: