Chaudhri Ghasitoo Ram and sons. vs Tara Devi and Others

Ram Chand Gupta, J.

CM No. 8651-CII of 2011

Application is allowed subject to all just exceptions.

CM No. 8652-CII of 2011

Requests for placing on record Annexure P5 i.e. receipt dated 01.06.2004 and Annexure P6 i.e. statement of Joginder Singh. The same are taken on record subject to just exceptions.

CM stands disposed of.

CR No. 3778 of 2010

The present revision petition has been filed under Article 227 of the Constitution of India for setting aside impugned order dated 30.04.2010 passed by learned Civil Judge(Junior Division), Jagadhri vide which application filed by the Petitioner-Defendant for treating document, Annexure P5 as a receipt u/s 2 of the Indian Stamp Act, 1899 (hereinafter referred to as the ''Act''), was declined and rather the document was treated as instrument of confirmation of the amount of loan.

I have heard learned Counsel for the parties and have gone through the whole record including the impugned order passed by learned trial Court.

It has been contended by learned Counsel for the Respondent-Plaintiff that the document, Annexure P5 may be treated as a receipt as per Section 2 of the Act and that he is ready to pay the requisite stamp duty alongwith the penalty as assessed by the learned trial Court as provided under proviso to Section 35 of the Act.

Learned Counsel for the Petitioner-Defendant has not been able to controvert the said argument of learned Counsel for the Respondent-Plaintiff.

It is relevant to reproduce Section 35 of the Act, which reads as under:

Instruments not duly stamped inadmissible in evidence, etc.

-No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped: Provided that--

(a) any such instrument shall be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion ;

(b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;

(c) Where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;

(d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure 1898;

(e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government, or where it bears the certificate of the Collector as provided by Section 32 or any other provision of this Act.

In view of the statement of learned Counsel for the Respondent Plaintiff, if the document, Annexure P5, is taken as a receipt, there is no dispute that the same requires stamp of Rs. 1/- as per Article 53, Schedule I of the Act. Proviso to Section 35 of the Act provides that instruments chargeable with duty shall be admissible in evidence on payment of the duty with which the same is chargeable alongwith a penalty as assessed by the Court as per the said proviso.

Hence, in view of these facts the present revision petition is accepted and the impugned order dated 30.04.2010 is modified to the extent that learned trial Court is directed to treat the disputed document, Annexure P5 as a receipt and to assess the requisite stamp duty and penalty payable by the Respondent-Plaintiff under proviso to Section 35 of the Act and opportunity be given to Respondent-Plaintiff to pay the requisite stamp duty and on being done so, the same be admitted in evidence.

The present revision petition is disposed of accordingly.