Showing posts with label unstamped document. Show all posts
Showing posts with label unstamped document. Show all posts

Thursday, 30 November 2023

Whether the court should admit copy of unstamped document as secondary evidence?

 We may now consider Section 35 of the Stamp Act which

forbids the letting of secondary evidence in proof of its

contents. The section excludes both the original instrument

and secondary evidence of its contents if it needs to be

stamped or sufficiently stamped. This bar as to the

admissibility of documents is absolute. Where a document

cannot be received in evidence on the ground that it is not

duly stamped, the secondary evidence thereof is equally

inadmissible in evidence. {Para 36}

37. In relation to secondary evidence of

unstamped/insufficiently stamped documents, the position

has been succinctly explained by this Court in Jupudi

Kesava Rao (supra) wherein it dealt with an issue, i.e.,

whether reception of secondary evidence of a written

agreement to grant a lease is barred by the provisions of

Sections 35 and 36 of the Stamp Act and answered it in

affirmative. It observed:

"12. The Indian Evidence Act, however, does not purport to deal

with the admissibility of documents in evidence which require to

be stamped under the provisions of the Indian Stamp Act.

13. The first limb of Section 35 clearly shuts out from evidence any

instrument chargeable with duty unless it is duly stamped. The

second limb of it which relates to acting upon the instrument will

obviously shut out any secondary evidence of such instrument, for

allowing such evidence to be let in when the original admittedly

chargeable with duty was not stamped or insufficiently stamped,

would be tantamount to the document being acted upon by the

person having by law or authority to receive evidence. Proviso (a)

is only applicable when the original instrument is actually before

the Court of law and the deficiency in stamp with penalty is paid

by the party seeking to rely upon the document. Clearly secondary

evidence either by way of oral evidence of the contents of the

unstamped document or the copy of it covered by Section 63 of the

Indian Evidence Act would not fulfil the requirements of the

proviso which enjoins upon the authority to receive nothing in

evidence except the instrument itself. Section 25 is not concerned

with any copy of an instrument and a party can only be allowed to

rely on a document which is an instrument for the purpose of

Section 35. "Instrument is defined in Section 2(14) as including

every document by which any right or liability is, or purports to be

created, transferred, limited, extended, extinguished or recorded.

There is no scope for the inclusion of a copy of a document as an

instrument for the purpose of the Stamp Act.

If Section 35 only deals with original instruments and not copies,

Section 36 cannot be so interpreted as to allow secondary evidence

of an instrument to have its benefit.”

(Emphasis supplied)

38. This Court, in Hariom Agrawal v. Prakash Chand

Malviya25, reiterated the principle laid down in Judupi

Kesava Rao (supra) and observed that:

“10. 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 under Section 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 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 Stamp Act, 1899.”

39. Thus, if a document that is required to be stamped is not

sufficiently stamped, then the position of law is well settled

that a copy of such document as secondary evidence cannot

be adduced. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4910 OF 2023

VIJAY Vs UNION OF INDIA & ORS. 

Author: SANJAY KAROL J.

 Citation: 2023 INSC 1030.
Print Page

Tuesday, 20 June 2017

Whether arbitrator can be appointed if agree-ment/MoU containing arbitration clause is unstamped?

In view of the dictum of Supreme Court in SMS Tea Estates Pvt. Ltd. (MANU/SC/0836/2011 : 2011 AIR SCW 4484) (supra), the application under Section 11 of the Act of 1996 for seeking reference to the Arbitrator/appointment of the Arbitrator has to be held to be not maintainable if the agree-ment/MoU containing the arbitration clause is unstamped or not duly stamped. 
IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)
S.B. Civil Misc. Application (Arbitration) No. 54 of 2015
Decided On: 21.10.2016
 Ansal Properties and Infrastructure Limited
Vs.
Jhamru Chandaram and Ors.
Hon'ble Judges/Coram:Mohammad Rafiq, J.
Citation:AIR 2017 Raj 52
Print Page

Sunday, 5 February 2017

Whether summary suit is maintainable on basis of unstamped receipt?

 In the suit, defendant filed said LA. 5495/89 seeking leave to defend suit on the grounds that Receipt dated 6th March 1986 is inadmissible in evidence being unstamped; plaintiff is not entitled to interest much less @ 20% p.a.; Said Receipt is without consideration and suit on the basis thereof is not maintainable under Order xxxvII CPC.
4. Said original receipt dated 6th March 1986 is placed on Part III file. Admittedly, it is unstamped. Stamp duty chargeable on a receipt as defined by Section 2(23) of the Indian Stamp Act, 1899 for an amount exceeding Rs. 20/- is 0.20 paisa as per entry 53 in Schedule I appended to the Act. Under Section 35 of the Act any instrument not duly stamped is inadmissible in evidence. Contention advanced by Mr. K.N. Kataria for plaintiff was that on payment of a penalty of rupee one by the plaintiff, said receipt can be admitted in evidence under Section 35(b) of the Act. However, relying on a decision in Yogendra Patwardhan v. Khandelwal Hermann Electronics Ltd., 90 Bombay Law Reporter 560 (Vol. XC. 1988) the submission advanced by Sh. R.S. Kela for defendant was that in a summary suit admissibility of document(s) has to be seen at the time of filing of suit and said receipt, therefore, cannot be looked into at this stage and present suit is not maintainable under Order xxxvII CPC. Said decision does support the contention advanced by Mr. Kela, advocate. My attention was also drawn on behalf of defendant to an order dated 22nd January 1992 passed in LA. 8736/90 in Suit No. 1232/90 by a learned single Judge of this court by which defendant No. 4 in that suit was granted leave to defend suit on the ground of hundi which was the basis of the suit, being insufficiently stamped.
Delhi High Court
Laxmi Narain Gupta vs Suraj Bhan Daruka on 22 November, 2000

Bench: K Gupta
Print Page

Friday, 13 November 2015

Whether unregistered partition deed can be used for collateral purpose if it is not properly stamped?

Then the next question that falls for consideration is whether
these can be used for any collateral purpose. The larger Bench of
Andhra Pradesh High Court in Chinnappa Reddy Gari Muthyala
Reddy Vs. Chinnappa Reddy Gari Vankat Reddy , AIR 1969 A.P.
(242) has held that the whole process of partition contemplates
three phases i.e. severancy of status, division of joint property by
metes and bounds and nature of possession of various shares. In a
suit for partition, an unregistered document can be relied upon for
collateral purpose i.e. severancy of title, nature of possession of
various shares but not for the primary purpose i.e. division of joint
properties by metes and bounds. An unstamped instrument is not
admissible in evidence even for collateral purpose, until the same is
impounded. Hence, if the appellants/defendants want to mark these
documents for collateral purpose it is open for them to pay the
stamp duty together with penalty and get the document impounded
and the Trial Court is at liberty to mark Exhibits B-21 and B- 22 for
collateral purpose subject to proof and relevance.
Accordingly, Civil Appeal is partly allowed holding that Exhibits
B-21 and B-22 are admissible in evidence for collateral purpose
subject to payment of stamp duty, penalty, proof and relevancy.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8441 OF 2015
ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NO. 12788 OF 2014

YELLAPU UMA MAHESWARI  V BUDDHA JAGADHEESWARARAO & ORS.

Dated: October 08, 2015
Author: N.V. RAMANA, J.
Citation:(2015) 16SCC787
Print Page

Wednesday, 20 November 2013

Bombay HC: Once unstamped document tendered in evidence, as per S.35 of Bombay Stamp Act, trial court or appellate court can not go behind that order


However, in the present case, we find that the objection as to the admissibility of the document on account of insufficiency of the stamp was raised and was decided by the trial Court when the document was tendered in evidence. Once it was decided that decision became final and cannot be reopened in this appeal in view of the judgment of the Apex Court in Javerchand's case supra. We would therefore, have to hold that the agreement of sale (Exhibit A), though in our opinion is improperly stamped, would be admissible in evidence and at any rate, we cannot go behind the order of the trial Court holding that the document was admissible in evidence. We are also fortified in this view by Section 35 of the Bombay Stamp Act which reads as under :--
"Where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 58, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped".
15. When the instrument is admitted in evidence, such admission cannot be called in question at any stage of the same suit or proceedings (which includes an appeal) on the ground that instrument has not been duly stamped except as provided in Section 58 of the Bombay Stamp Act1

Bombay High Court
Naginbhai P. Desai vs Taraben A. Sheth on 22 November, 2002
Equivalent citations: AIR 2003 Bom 192, 2003 (4) BomCR 313, 2003 (1) MhLj 994
Author: D Karnik
Bench: S Radhakrishnan, D Karnik

Print Page