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SUPREME COURT OF INDIA
S. ABDUL NAZEER, HEMANT GUPTA, JJ.
M/S. Z. ENGINEERS CONSTRUCTION PVT. LTD. & ANR. – APPELLANT(S)
VERSUS
BIPIN BIHARI BEHERA & ORS. – RESPONDENT(S)
CIVIL APPEAL NO. 1627 OF 2019(ARISING OUT OF SLP (CIVIL) NO. 5036 OF 2019)
Decided on : 14-02-2020
Civil Procedure Code, 1908 – Order XIII Rule 8 – Indian Stamp Act, 1899 – Section 35 and Articles 23 and 48 – Impounding of Power of Attorney – Partition suit – Deficiency in stamp duty – Question whether possession was transferred at the time or after execution of such power of attorney is a question of fact which is required to be decided by Court at the time of final decision being adjudicated, after evidence is led by parties and not merely on the basis of recitals in power of attorney – In facts of present case, objection related to deficiency in stamp duty on a power of attorney which appellants claim to be conveyance, depends upon finding regarding delivery of possession in terms of power of attorney – Such objection is required to be decided before proceeding further – However, in a case where evidence is required to determine nature of document, it is reasonable to defer admissibility of a document for insufficient stamp duty at the time of final decision in suit – Orders passed by trial court and High Court set aside and matter remitted to trial court to decide objection of admissibility of document on account of being insufficiently stamped in light of findings recorded, after evidence is led by parties. (Paras 12, 13 and 14)
Facts of the case:
Challenge in the present appeal is to an order passed by High Court of Orissa on 24th January, 2019 whereby the petition filed by the appellant under Article 227 of the Constitution of India, dismissing an application filed by the appellant under Order XIII Rule 8 of Code of Civil Procedure, 1908 to impound power of attorneys was dismissed.
Findings of the Court:
In facts of the present case, the objection related to deficiency in stamp duty on a power of attorney which the appellants claim to be conveyance, depends upon the finding regarding delivery of possession in terms of the power of attorney. Generally speaking, such objection is required to be decided before proceeding further. However, in a case where evidence is required to determine the nature of the document, it is reasonable to defer the admissibility of a document for insufficient stamp duty at the time of final decision in the suit.
Result : Appeal disposed of.
JUDGMENT :
Hemant Gupta, J.
Leave granted.
2. The challenge in the present appeal is to an order passed by the High Court of Orissa on 24th January, 2019 whereby the petition filed by the appellant under Article 227 of the Constitution of India, dismissing an application filed by the appellant under Order XIII Rule 8 of the Code of Civil Procedure, 1908 [for short, 'Code'] to impound the power of attorneys (Exts. 4 and 5), was dismissed.
3. The plaintiffs-respondents instituted a suit for partition through their power of attorney holder Kishore Chandra Behera (PW-1). During the cross-examination of PW-1, the present appellants filed an application under Order XIII Rule 8 of the Code to impound the power of attorneys, Exts. 4 and 5, inter alia, for the reason that such power of attorney is to be treated as Conveyance within the meaning of Article 23 of the Indian Stamp Act, 1899[for short, 'Act'] as amended by Orissa Act No. 1 of 2003 w.e.f. 20th January, 2003. The amended Schedule IA reads as under:
| Schedule IA | |
| Conveyance, as defined by Section 2(10) not being a transfer charged or exempted under No. 62: | |
| (a) in respect of movable property | Four per centum of the amount or value of the consideration as set forth in the instrument. |
| (b) in respect of immovable property | Eight per centum of the amount or value of the consideration for such conveyance as set forth therein or the marked value of the property whichever is higher. |
| xxx | xxx |
| Explanation For the purpose of this article, an agreement to sell any immovable property or a power of attorney shall, in case of transfer of the possession of such property before or at the time of or after the execution of such agreement or power of attorney, be deemed to be a conveyance and the stamp duty thereon shall be chargeable accordingly | |
| Provided that the stamp duty already paid on such agreement or power of attorney shall, at the time of the execution of a conveyance in pursuance of such agreement or power of attorney, be adjusted towards the total amount of duty chargeable on the conveyance. | |
4. Similarly, clause (f) of Article 48 was substituted by the amending Act, contemplating levy of stamp duty as conveyance when such power of attorney is given for consideration and authorising the attorney to sell any immovable property.
5. The power of attorney dated 21st February, 2011 was produced in evidence as Ex.4 on 9th July, 2008 by PW 1- Kishore Chandra Behera. It was objected to by the present appellants. The other power of attorney dated 4th October, 2008 was produced as Ex.5 in evidence on 7th August, 2018 which was again objected to by the present appellants. The relevant part of the evidence from the statement of PW 1 reads as under:
"15. ...This is the original general power of attorney dtd.21.02.2011 marked Ext-4 (with obj.).
16. This is the original general power of attorney bearing No. 10676 dtd.04.10.2008 marked Ext-5 (with obj.)."
6. It is thereafter an application was filed by the appellants on 3rd September, 2018 seeking direction to impound the two power of attorneys on the ground that they were insufficiently stamped. Therefore, in terms of Section 35 of the Act, the same were liable to be impounded and can be admitted in evidence only if appropriate stamp duty and penalty is paid. It is argued that in terms of the Act as amended in the Orissa State, the power of attorney shall be treated to be conveyance if the possession is transferred before or at the time or after the execution of a power of attorney. It is contended though, that the cumulative reading of the power of attorneys shows that the intention is to give an unequivocal right to the attorney to sell the land. However, the fact that the possession was transferred to the attorney was admitted when the attorney appeared as PW
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