Narendra Suri and Another vs Ranjeet Shah and Others

U.C. Maheshwari, J.—The petitioners/plaintiffs no. 1 & 2 have filed this petition under Article 227 of the Constitution of India being aggrieved by the order dated 10.9.2013 (Annexure-P-8) passed by XIVth Additional District Judge Bhopal, in Civil Original Suit No. 882-A/2012, whereby their application filed u/s 65 of the Evidence Act permitting them to prove the photo copy of the notarized letter written on some letter head vide dated 5.9.1996 (Annexure-P-4) and the photo copies of some other documents through secondary evidence, has been dismissed. The facts giving rise to this petition in short are that, the petitioners no. 1 & 2 and respondents no. 3 to 5 have filed the impugned suit against the respondent no. 1 & 2 for Specific Performance, declaration and perpetual injunction with respect of the property described in the plaint on the strength of the agreement to sale dated 9.6.2000. Apart this, the photo copy of aforesaid document dated 5.9.1996 (Annexure-P-4) to show the part payment of the settled consideration of such agreement to sale has also been referred in the pleadings.

In the written statement of the respondent no. 1, beside the other averments, it is stated that the aforesaid document 05.09.1996, being made by the plaintiffs under some conspiracy is a forged and fabricated document is also objected on the ground that the same is neither properly stamped nor registered with the Registrar and in such premises, the same is not admissible in evidence.

In pendency of the suit on behalf of the petitioners and respondents no. 3 to 5, the impugned application (Annexure-P-3) u/s 65 of the Evidence Act was filed. Inter-alia in such application it is stated that along with the suit, the photo copy of this document dated 5.9.1996 written on letter head was also filed and its notarized copy was filed at later stage. It is also stated that after its execution the original document was kept by the respondent no. 1 and the notarized copy of the same was given to the plaintiffs by the respondent no. 1. The respondent no. 1 inspite having the possession of original has not produced the same. So in such circumstances to prove such document the petitioners filed the impugned application permitting them to prove the same through secondary evidence on the basis of notarized copy of the same. Beside this, to prove the demand notice of the property tax dated 27.6.1996, and some fax message sent by the respondent no. 1 from his Bombay Office to Bhopal Office on dated 12.8.1999, through secondary evidence on the basis of their photo copies is also made.

The averments of the aforesaid I.A., has been denied on behalf of the respondent no. 1 in his reply (Annexure-P-7), inter-alia in such reply it is stated that the aforesaid document dated 5.9.1996 being forged and fabricated and in the lack of proper stamp duty and registration, is not admissible and in such premises, the petitioners/plaintiffs could not be permitted to prove the same through secondary evidence. So far other documents are concerned, by disputing their existence it is stated that in the lack of positive evidence regarding source of receiving the same, petitioners could not be permitted to prove such documents through secondary evidence on the basis of the photo copies. The photo copy could not be treated to be the secondary evidence. In further averments, it is stated that in the lack of delivery report of the fax massage, no permission to prove the same on the basis of the photo copy could be given to the petitioners and the prayer for dismissal of the I.A., was made.

On consideration such application was dismissed by the trial Court on which, the petitioners have come to this Court with this petition.

After taking me through the impugned order along with the papers placed on the record, petitioners'' counsel has argued that the description of the said document dated 5.9.1996, is stated in the pleadings of the plaint and in such premises, beside the agreement dated 9.6.2000, the petitioners have to prove this document also. Such original document dated 5.9.1996, being remained in possession of the respondents no. 1 & 2, the same could not be produced by the petitioners hence, they want to prove the same on the basis of aforesaid notarized photo copy which was given to the petitioners/plaintiffs. So in such premises, there was no option with the petitioners except to prove such document through aforesaid secondary evidence. In continuation he said that, in order to prove the part payment of the consideration of the agreement dated 9.6.2000, the aforesaid document is necessary to prove on the record because in such document, the description of payment received by the respondents/plaintiffs has been stated. He further said that such document being notarized by the notary could not be doubted at this stage and in the lack of any proper stamp duty or registration, the petitioners could not be deprived to prove the same in support of their contention, he also referred the proviso (C) of Section 35 of the Stamp Act. So far as the other documents are concerned, he said that the same being demand notice issued by the public authority and the photo copy of fax message sent by the Office of the respondent no. 1 from Bombay to his Office at Bhopal, could not be doubted and in the lack of production of the original by the respondent no. 1, the petitioners should have been permitted by the trial Court to prove all these documents through secondary evidence by allowing his application, but the same has been dismissed by the trial Court under the wrong premises. He also placed his reliance on a case decided by the apex Court in the matter of AIR 1971 1070 (SC) and in the matter of Sri Mahalinga Thambiran Swamigal Vs. His Holiness Sri La Sri Kasivasi Arulnandi Thambiran Swamigal, , and prayed to allow his application and set aside the impugned order by admitting and allowing this petition.

Keeping in view his arguments, I have carefully gone through the paper placed on the record along with the impugned order.

Mere perusal of the document dated 5.9.1996 (Annexure-P-4), the same appears to be an agreement to sell. It is also apparent that such documents has not been written on any stamp as per requirement of the Stamp Act, and undisputedly the same is not registered. It is also apparent that in the endorsement of the notary, the required informations like serial number of the notarized document, on whose instance the same was notarized, have not been stated. It is also apparent from the agreement dated 9.6.2000 that any where in this agreement the reference of such document has also not been stated. So in such premises, there is no nexus between the aforesaid both the documents. It is also apparent from the papers placed on the record that the petitioners also prayed to prove the demand notice, of the property tax and some fax message on the basis of their photo copies through secondary evidence. It is also apparent from the application that the source of obtaining the same and the averments regarding manner in which the photo copies of the same were taken out, have not been stated.

At this stage, as ready reference, I would like to reproduce the version stated in the aforesaid document dated 5.9.1996 (Annexure-P-4). The same is as under:-

Tool Masters

BHEL, Anchiary Industrial Estate, Habibganj, Bhopal.

Total amount of deal to the paid Rs. 60,000,00.00 (Sixty lacs)

Starting from 5.9.1996 to 30th June 2002.

Hole of payment-in 60 installment by cheque previously deposited amount of Rs. 3.5 lakhs is to be considered as advance in this deal which can be adjusted at any stage.

Registration will be made after full payment and in the names of as deserved by Shri Narendra Suri.

This is decided between Shri R.H. Shah of tool Masters, Bhopal and Shri Narendra Suri of Delicacy Bhopal.

The trial Court while considering the impugned application in the light of the aforesaid document has stated that the same has not been referred in the agreement dated 9.6.2000 on which, the impugned suit has been filed. In the agreement dated 9.6.2000, contrary to the aforesaid document, it is stated that out of the settled consideration of Rs. 60 Lacs, Rs. 41,50,000/- has been paid in cash. In the written statement of respondent no. 1, the execution of such document dated 5.9.1996, has been denied and possession of the same with him is also denied and pursuant to these pleadings and circumstance, it was held that mere on the basis of signature of the notary on photo copy of such letter, petitioners could not be permitted to prove the same by way of secondary evidence and such approach does not appears to be perverse.

So far as the other documents are concerned, in the lack of positive prima facie evidence and particulars showing that original demand notice and fax massage have been lost, and are not in existence or in possession of other party, the trial Court in the light of the decision of the apex Court in the matter of Directorate of Revenue and Another Vs. Mohammed Nisar Holia, , has not committed any error in holding that mere on the basis of the photo copies of aforesaid documents, the petitioners could not be permitted to prove the same by secondary evidence. In the available circumstances, such approach of the trial Court for dismissing the impugned application, does not appear to be perverse or contrary to any procedure.

Apart the aforesaid, mere perusal of the document dated 5.9.1996, prima facie it appears to be an agreement to sale of some property but the same was neither written nor prepared on a requisite stamp duty. So in such situation, for the sake of arguments for a moment if it is deemed that the photo copy of such document was taken out on the basis of original even then, in the lack of proper stamp duty on the original document in view of the provisions of Section 35 of the Stamp Act and in the light of the decisions of the apex Court in the matter of Hariom Agarwal Vs. Prakash Chand Malviya, , the same is not admissible document in evidence for any purpose. In the case it was held as under:-

It is clear from the decisions of this Court and a plain reading of Sections 33, 35 and 2(14) of the Act that an instrument which is not duly stamped can be impounded and when the required fee and penalty has been paid for such instrument it can be taken in evidence u/s 35 of the Stamp Act. Sections 33 or 35 are not concerned with any copy of the instrument and party can only be allowed to rely on the document which is an instrument within the meaning of Section 2(14). There is no scope for the inclusion of the copy of the document for the purposes of the Indian Stamp Act. Law is now no doubt well settled that copy of the instrument cannot be validated by impounding and this cannot be admitted as secondary evidence under the Indian Stamp Act, 1899.

Section 37 of the Act would be attracted where although the instrument bears a stamp of sufficient amount but such stamp is of improper description, as in the present case where the proper stamp duty of Re. 1/- under the Act has not been paid but a notarized stamp of Rs. 4/- was affixed on the document. The sufficient amount of the stamp duty has been paid but the duty paid by means of affixture of notarized stamp is of improper description. By virtue of Rule 19 of the Madhya Pradesh Stamp Rules, 1942, the Collector of Stamp is authorized to receive the proper stamp duty on an instrument which bears a stamp of proper amount but of improper description, and on payment of the adequate duty chargeable under the Act he would certify by endorsement on the instrument that the instrument is duly stamped. Under the proviso to the Rule, the Collector may pardon the further payment of duty prescribed in this Rule provided the person holding the original instrument moves the Collector within three months of the execution of the instrument for certification by endorsement and the Collector is satisfied that the stamp of improper description was used solely on the account of the difficulty or inconvenience of the holder of the instrument to procure the adequate stamp duty required to be paid on the instrument. But the power u/s 37 and Rule 19, even after framing the rules by the State Government, could only be exercised for a document which is an instrument as described u/s 2(14). By various authorities of this Court, an instrument is held to be an original instrument and does not include a copy thereof. Therefore, Section 37 and Rule 19 would not be applicable where a copy of the document is sought to be produced for impounding or for admission as evidence in a case.

Section 48B is a provision applicable in the State of Madhya Pradesh which was inserted by Indian Stamp (M.P. Amendment) Act, 1990 ( No. 24 of 1990] in Chapter IV under heading Instrument not duly stamped of the Act. This Section reads as under:

48-B. Original instrument to be produced before the Collector in case of deficiency. Where the deficiency of stamp duty is noticed from a copy of any instrument, the Collector may by order require the production of original instrument from a person in possession or in custody of the original instrument for the purpose of satisfying himself as to the adequacy of amount of duty paid thereon. If the original instrument is not produced before him within the period specified in the order, it shall be presumed that the original document is not duly stamped and the Collector may proceed in the manner provided in this Chapter:

Provided that no action under this section shall be taken after a period of five years from the date of execution of such instrument.

Such question was also answered by the apex Court in the matter of Avinash Kumar Chauhan Vs. Vijay Krishna Mishra, in which it was held as under:-

The Parliament has, in Section 35 of the Act, advisedly used the words "for any purpose whatsoever". Thus, the purpose for which a document is sought to be admitted in evidence or the extent thereof would not be a relevant factor for not invoking the aforementioned provisions.

In the aforesaid premises, if the original document could not be permitted to mark the exhibit in evidence, then mere on the basis of the signature of the notary on the photo copy, the petitioners could not be permitted to prove the same by way of secondary evidence. It is apparent from the above cited decision "Directorate of Revenue and others" (supra), that the photo copies of the documents could not be permitted to prove by secondary evidence.

While advancing the arguments, the counsel has also referred the proviso (C) of Section 35 of the Stamp Act, but such provision is not helping to the petitioners because in the aforesaid discussions the nexus between the document dated 5.9.1996 and the agreement to sale dated 9.6.2000 has not been found. As such nothing has been stated in the agreement to sale dated 9.6.2000, with respect of the agreement dated 5.9.1996. So such proviso could not be invoked in the matter to permit the petitioner to prove such document as secondary evidence. In such premises, the case laws cited on behalf of the petitioners Jupudi Kesava Rao (supra), is also not helping to the petitioners. Such case is also distinguishable on facts in the available scenario of the case at hand.

In view of the aforesaid discussions, the case law cited on behalf of the petitioner in the matter of Sri Mahalinga Thambiran Swamigal (supra) is also not helping to the petitioners.

In the aforesaid premises, I have not found any perversity, irregularity, illegality or anything against the propriety of the law in the order impugned. Consequently, this petition being devoid of any merit, deserves to be and is hereby dismissed at the stage of motion hearing. There shall be no order as to the costs.