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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.M. KANADE & SWAPNA S. JOSHI, JJ.
Asset Reconstruction Company (India) Limited - Petitioner
Versus
M/s. Alpha & Omega Diagnostics (India) Ltd. & Ors. - Respondents
WRIT PETITION (L) No. 1154 OF 2016
Decided On : 19-08-2016
The provisions for impounding the document, which is not a stamped document or which is inadequately stamped, is made to ensure that unless the revenue is received by the State Government, the said document should not be released to the person, who has tendered that document. The purpose behind impounding the document is therefore abundantly clear.
It is a mechanism, which has been evolved in order to ensure that the person, who has tendered that document, does not escape from the clutches of the State, and the revenue is paid in the form of stamp duty by such a person. The second obvious reason for impounding the document is to further ensure that even if suit is withdrawn, the payment can be secured by ensuring that it is impounded, so that the person who wishes to get back document will have to first pay the stamp duty, and thereafter he can claim return of the document.
In the present case, application was made by the petitioner for impounding the documents, which were 27 in number. The Presiding Officer of the DRT, though allowed the application filed by the petitioner, further passed an order directing the return of the documents to the petitioner/applicant with a further direction that the same should be presented after they were duly stamped. Accordingly, the petitioner took the documents and presented them before the competent authority. The DRAT, however, came to a conclusion that the provisions of Sections 33 and 37(2) were not complied by the DRT, and therefore, it was of the view that the said procedure should be flowed, and for that purpose remanded the matter back to the DRT, and set aside the order passed by the DRT.
In the present case, however, though this procedure has not been followed, the DRAT should have taken pragmatic and practical view of the matter and considered the fact that during pendency of the appeal, these inadequately stamped or unstamped documents were now duly stamped before the competent authority, and therefore, there was no occasion for the DRAT who have interfered with the order passed by the DRT. There is no point in turning the clock back, when the purpose for which documents are to be impounded is served, viz. the revenue was secured in the form of payment of stamp duty. The impugned order passed by the DRAT is set aside.
Maharashtra Stamp Act, 1958 - Sections 33, 34 and 37-Inadequately stamped document.-It is duty of Court to impound inadequately stamped document and send it for adjudication.
In the peculiar facts and circumstances of the case, Court does not propose to interfere with the order passed by the DRT, and therefore, Court aside the order passed by the DRAT since the interests of the revenue have already been secured. Court would, however, like to clarify that the decision taken by the DRT should not be considered as a precedent in such cases, and the appropriate course of action is to follow the procedure laid down under the said Act for the purpose of impounding the document and sending it for adjudication before the competent authority.
The ratio of the judgment in the case of Hindustan Steel Ltd. (supra) will squarely apply to the facts of the present case. The respondents against whom the claim application has been filed cannot protract the proceedings on technicalities to defeat the claim of the opponent/petitioner herein. In the result, the impugned order is set aside. The proceedings before the DRT-II, Mumbai are expedited. The writ petition is made absolute in the aforesaid terms and is accordingly disposed of.
V. M. KANADE, J.
1. Heard the learned counsel appearing on behalf of the Petitioner and the learned senior counsel appearing on behalf of the Respondents. The Petitioner in this petition is aggrieved by the judgment and order passed by the Debts Recovery Appellate Tribunal, Mumbai (for short the “DRAT”) dated 16th December, 2015 in Miscellaneous Appeal No. 24 of 2012 alongwith Misc. Appeal Nos. 578/2015 and 930/2013.
2. Rule. Rule is made returnable forthwith. By consent of parties, petition is taken up for final hearing.
3. The Petitioner is a public financial institution, as defined under the provisions of the Recovery of Debts due to Banks and Financial Institutions Act, 1993. The Oriental Bank of Commerce had advanced various amounts to Respondent No. 1, who had guaranteed the repayment of the said amount and had mortgaged their properties with the Bank. Since the Respondents were unable to repay the said amount, which was due and payable to the Bank, the Bank filed Original Application No. 89 of 2005 against the Respondents before the Debts Recovery Tribunal-II, Mumbai (for short the “DRT”). The debts, which were due and payable to the Oriental Bank of Commerce, were assigned to the Petitioner Company, and therefore, the Petitioners were substituted as applicant in the original application. The Petitioner filed the claim affidavit alongwith the original document. The Respondents / Defendants also filed their claim, reiterating what they had stated in the written statement.
4. The Petitioner / Applicant filed an Interim Application No. 384 of 2011, requesting the Presiding Officer to impound the said documents since they were not properly stamped. The Respondents opposed the said application. The DRT, however, allowed the application filed by the Petitioner, and passed an order that the documents tendered by the Petitioner should be returned to the Petitioner, and that the Petitioner should get these documents properly stamped from the competent authority.
5. The Respondents challenged the order of DRT by filing Miscellaneous Appeal No. 24 of 2012 before the DRAT. During pendency of the appeal all the documents, which were returned to the Petitioner were duly stamped as per the order passed by the competent authority, were filed before the DRT.
6. The learned Chairperson of the DRAT allowed the appeal filed by the Respondents and directed the DRT to consider the documents as if they were unstamped and gave a direction to follow the procedure, established under the Bombay Stamp Act, 1958 and more particularly, under Section 33, 34 and 37 of the said Act.
7. The Petitioner being aggrieved by the said order has filed this petition under Article 226 of the Constitution of India. Mr. Saraf, the learned counsel appearing for the Petitioner has taken us to the impugned order passed by the DRAT. He submitted that since the documents were duly stamped during the pendency of the appeal and refiled before the DRT, the appeal had become infructuous and the DRAT should not have given a direction to the DRT to decide the matter afresh. He further submitted that the relevant provisions, viz. Sections 33, 34 and 37 of the Bombay Stamp Act, 1958 (for short the “said Act”) were incorporated only with an intention to protect the interest of the revenue. He submitted that since the stamp duties have been paid, the said intention has been fulfilled, and therefore, there are no occasions for the DRAT to give a direction to follow the procedure under Section 33 and 37 sub-section (2) of the said Act. He also relied on the judgment of the Apex Court in the case of – Hindustan Steel Ltd., Appellant Vs. M/s. Dilip Construction Co., Respondent [AIR 1969 Supreme Court 1238].
8. On the other hand, the learned senior counsel Mr. Aspi Chinoy, appearing for the Respondents invited our attention to Section 37 sub-section (2) of the said Act, and submitted that the procedure laid down under Section 37 sub-section (2) is mandatory and that was the only wa
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