The petitioner / plaintiff has laid the suit for recovery of money against the respondent / third defendant and others. It is found that according to the petitioner / plaintiff, in respect of the business transaction entered into with some of the defendants and as the defendants have admitted the lability to pay the suit amount to the petitioner / plaintiff, it is the case of the petitioner / plaintiff that defendants 1 and 4 had executed a mortgage deed, though styled as a loan document by the petitioner / plaintiff, dated 19.01.2014 and on the same date, the defendants 2, 5 and 6 have executed another mortgage deed, though styled as a loan document by the petitioner / plaintiff, agreeing to pay the amount claimed in the suit to the petitioner / plaintiff, however, to defeat the rights of the petitioner / plaintiff, the defendants 1 and 2 have also executed a revocation deed of the partnership deed amongst themselves on 17.06.2014 and inter alia the petitioner / plaintiff has claimed the recovery of money in the suit. It is found that the above said documents are only photostat copies. It is further found that the case of the petitioner / plaintiff has been stoutly resisted by the defendants and in fact they have also disputed the execution of the above said purported loan documents, dated 19.01.2014, and the revocation of the partnership deed, dated 17.06.2014, as alleged by the petitioner / plaintiff.
2. Be that as it may, it is found that the petitioner / plaintiff had laid an application, in I.A.No.119 of 2016, seeking permission of the Court to mark the above said disputed documents in support of his case. The said application was also resisted by the respondent / third defendant as such and it is found that the Court below, on a consideration of the rival contentions put forth by the respective parties, permitted to mark the above said documents subject to their proof and relevancy.
3. While the matter stood thus, it is found that the respondent / third defendant has moved another application before the Court below, in I.A.No.644 of 2016, contending that the petitioner / plaintiff has not established the existence of the original documents as regards the disputed documents as claimed by him and even assuming that the original documents are in place, according to him, the said documents cannot be marked even for collateral purpose as the said documents are not sufficiently stamped and registered as required under law and therefore, according to the respondent / third defendant, the documents marked as Exs.A7 to A9 are liable to be rejected and if the same are to be marked for collateral purpose, the said documents are required to be sufficiently stamped with penalty and therefore, prayed for rejection of the above said documents namely Exs.A7 to A9. The said application was resisted by the petitioner / plaintiff contending among other things that inasmuch as the documents had already been marked subject to their proof and relevancy after inviting the objections of the respondent / third defendant as per the order passed in I.A.119 of 2016, the respondent / third defendant is precluded from again agitating the said issue and seek for the rejection of the documents for the reasons claimed by him. It is the further case of the petitioner / plaintiff that inasmuch as the documents had been marked only for the collateral purpose and the petitioner / plaintiff also relies upon the said documents only as proof or acknowledgment of the debt accepted by the defendants 1 and 2, it is stated that as further the petitioner / plaintiff has not claimed any relief based upon the mortgage deeds as such, it is contended that the action of the Court below in marking of the documents concerned could not be again re-agitated by the respondent / third defendant and hence, the application is liable to be dismissed.
4. However, considering the rival contentions put forth by the respective parties, holding that the documents marked as Exs.A7 and A8 are only mortgage deeds, whereunder the concerned defendants have agreed the receipt of the consideration recited therein in various installments totally amounting to Rs.34,00,000/- in respect of both documents and accordingly, finding that such documents though could be marked for collateral purpose as per the proviso of
Section 49 of the Registration Act, held that as per
Section 35 of the Stamp Act, the documents cannot at all be acted upon, without the payment of the requisite stamp duty and penalty as per law and hence, by the impugned order, directed the petitioner / plaintiff to pay the necessary stamp duty and penalty for the documents marked as Exs.A7 and A8 and however, did not accept the case of the respondent / third defendant as regards the rejection of the document marked as Ex.A9. Impugning the said order, this civil revision petition has been preferred.
5. It is mainly contended by the learned counsel for the petitioner / plaintiff that inasmuch as the said documents have come to be marked as per the orders of the Court below in I.A.No.119 of 2016, subject to their proof and relevancy after inviting the objections of the respondent / third defendant, it is his contention that the respondent / third defendant cannot be allowed to re-agitate the said issue once again and hence, the Court below has erred in directing the petitioner / plaintiff to pay the stamp duty and penalty, failing which, the rejection of the documents would ensure and hence, the impugned order is liable to be set aside. Further, according to the petitioner / plaintiff, inasmuch as based upon the documents marked as Exs.A7 and A8 the petitioner / plaintiff has not claimed the relief and as the said documents are relied upon by the petitioner / plaintiff only as the proof and acknowledgment of debt by the defendants concerned, it is contended that the said documents also do not require any stamp duty and penalty as determined by the Court below.
6. Per contra, it is the contention of the learned counsel for the respondent / third respondent that at any stage of the matter, even in appeal as well as revision, the affected party could seek for the rejection of the marked documents and the fact that the documents had come to be marked earlier by the Court subject to their proof and relevancy would not by itself disentitle the respondent / third defendant from agitating the issue again when once it is found that the documents in question are required to be sufficiently stamped and and if not stamped, the same could also be not looked into for collateral purpose as per
Section 35 of the Stamp Act. Further, according to the learned counsel for the respondent, the documents in question being mortgage deeds and when the petitioner / plaintiff is liable to pay the stamp duty for the consideration recited therein, the petitioner / plaintiff cannot escape from the same by contending that the said documents are only sought to be marked as proof for acknowledgment of the debt accepted by the defendants concerned and not for any other purpose. Therefore, stressed that the impugned order does not call for any interference from this Court.
7. As rightly determined by the Court below, it is found that the documents in question namely, Exs.A7 and A8 are only mortgage deeds executed by the defendants in support of the consideration recited therein in various installments. It is, therefore, found that as rightly determined by the Court below, the said documents are required to be compulsorily registered and duly stamped as per law. Therefore, the nomenclature employed by the petitioner / plaintiff that they are only loan documents as such would not entitle the petitioner / plaintiff to avoid the payment of the stamp duty and penalty as well as the reregistration thereof.
8. It is found that according to the petitioner / plaintiff, the documents have come to be marked already by the Court below as per the order passed in I.A.No.119 of 2016 and therefore, the issue cannot be again re-agitated. However, the said argument of the learned counsel for the petitioner / plaintiff cannot be accepted in the light of the decision of the Apex Court reported in (2003) 8 SCC 752 [R.V.E.Venkatachala Gounder vs. Arulmigu Viswesaraswami and V.P.Temple]. A reading of the said decision would go the show that the objection to the document, even if it is already marked and the document is per se inadmissible in evidence, can be raised at any stage of the case and it is further seen that merely because a document has been marked as an exhibit, the objection to its admissibility is not excluded and it is available to be raised even at a later stage even in appeal or revision. It is, therefore, found that the contention of the learned counsel for the petitioner / plaintiff that the order passed in I.A.No.119 of 2016 would preclude the respondent / third respondent from contesting the reception of the documents by the Court subject to their proof and relevancy is not entitled for acceptance. It could, therefore, be seen that the same could be canvassed and at any stage of the matter as per the decision of the Apex Court above referred to.
9. Now, according to the petitioner / plaintiff, the documents in question are sought to be marked only as proof of acknowledgement of the debt accepted by the concerned defendants. In other words, according to the petitioner / plaintiff, the documents in question are sought to be marked for collateral purpose. In this connection, reliance is placed upon the proviso to
Section 49 the Registration Act and therefore, according to the petitioner / plaintiff, as per the above said proviso, he is entitled to seek for the marking of the documents in question for collateral purpose as claimed by him. No doubt, it is found that as per the proviso of
Section 49 of the Registration Act, the documents, which had not been registered and stamped as per law, could be received in evidence for the purpose of establishing the collateral transaction, if the collateral transaction is not required to be registered as per law.
10. However, it is the contention of the learned counsel for the respondent / third defendant that when the documents in question are found to be compulsorily registrable and duly stamped as per law, it is stated that as per
Section 35 of the Stamp Act, the document cannot be acted upon unless such document is duly stamped and in such view of the matter, according to him, the Court below has rightly, invoking
Section 35 of the Stamp Act, directed the petitioner / plaintiff to pay the necessary stamp duty and penalty and therefore, the impugned order does not warrant any interference from this Court. In this connection, strong reliance is placed upon the decision reported in (2013) 3 MLJ 644 [D.Balachandran vs. T.C.Shanmugam], wherein it has been held that though a document could be marked for collateral purpose even if the same is not a registered one as per law, however, relying upon
Section 35 of the Stamp Act and finding that as per the said provision, 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, unless such instrument is duly stamped. It has been, therefore, held that as per
Section 35 of the Stamp Act, there is a total prohibition to receive in evidence the unstamped document. In such view of the matter, in the above cited decision, taking into consideration the other provisions of the Stamp Act, in particular,
Section 36 of the said Act, it has been held that a combined reading of Sections 35 and 36 of the Stamp Act makes it clear that even though a document was admitted in evidence, which was not duly stamped, the admission cannot be questioned later by virtue of
Section 36 on the ground that the document was not duly stamped, but, as per
Section 35, the Court shall not act upon that document, unless such document is duly stamped and in such view of the matter, it has been held that such document cannot be acted upon for any purpose and the admissibility can also be challenged at any point of time. It is, thus, found that there is a clear determination in the said authority relying upon by the decisions of the Apex Court that as per
Section 35 of the Stamp Act, a document cannot be acted upon for any purpose unless the document is properly stamped as per law and if not properly stamped, the party relying upon the said should pay the necessary stamp duty and penalty as per law. Accordingly, it is found that the Court below has also relying upon
Section 35 of the Stamp Act and finding that the documents in question being mortgage transactions, which require to be compulsorily registered and stamped duly as per law and finding that though the said documents had come to be earlier marked subject to their proof and relevancy and on taking further notice subsequently, that the documents in question cannot be acted as per
Section 35 of the Stamp Act and accordingly, directed the petitioner / plaintiff to pay the stamp duty and necessary penalty thereof and in such view of the matter, when it is found that the impugned order has been passed by the Court below taking into consideration of the legal aspects and the factual aspects in the correct perspective, I am of the considered opinion that the impugned order cannot be disturbed in any manner.
11. In the light of the above discussions, the revision petition does not merit acceptance and accordingly, the same is dismissed. No costs. Consequently, connected civil miscellaneous petition is closed.
To:
The VI Additional District Judge, Madurai.
.