Proper stamping and registration are essential for the admissibility of unregistered documents affecting immovable property as evidence in a suit for specific performance. The court has a duty to decide objections related to stamp duty before proceeding further.

JUDGMENT

1. Heard Shri. Gangakhedkar, learned counsel for the Petitioner and Mr. Piyush Shah for Respondents.

2. This Petition is by the Plaintiff. Respondent claimed to be owner of plot survey no. 75 & 76 at Mumbra who entered into an agreement of sale with the Petitioner-Plaintiff on 23/01/2015. It is claimed that there are two agreements executed by the Respondent-Defendant infavour of the Plaintiff.

3. Since the agreement was not honoured, suit being S.C.S. No. 517 of 2015 came to be initiated before the Civil Judge Senior Division, Thane for specific performance. It is claimed that before the issues were framed, Application for impounding was moved by Respondent-Defendant.

4. Agreement of sale dated 23/01/2015 and the Power of Attorney are ordered to be impounded at the time of recording of evidence of the Petitioner-Plaintiff vide order impugned dated 10/12/2019. As such, this Petition.

5. Submissions of Shri. Gangakhedkar are, under Proviso to Section 49, an unregistered document which is required to be registered under the Transfer of Property act or under the Registration Act affecting immovable property, may be received in evidence of a contract in Suit for specific performance or as evidence of collateral transaction. Learned counsel would urge that Apex Court in the matter of M/s. Z. Engineers Construction Pvt. Ltd. and another Vs. Bipin Bihari Behera and others [AIR 2020 SUPREME COURT 1140] wherein it is observed provisions of Maharashtra Stamp Act can be invoked only when an objection regarding insufficient stamp duty was judicially raised.

6. According to him, during recording of oral evidence, Trial court can make a note of such objection and mark the document tentatively as an Exhibit, subject to an objection which can be decided at the time of final Judgment. According to him, the objection relates to the deficiency of stamp duty of a document, as such, should have been determined at the fag end of the hearing and not at this stage of the proceedings. Shri. Gangakhedkar would also draw support from the Judgment of the Apex Court in the matter of Ameer Minhaj Vs. Dierdre Elizabeth (Wright) Issar and others [(2018) 7 Supreme Court Cases 639] so as to claim that there is legal presumption as to properly stamped Power of Attorney and in case document is hit by the provisions of the Stamp Act or Transfer of Property Act, can be decided by the Trial Court after adduction of oral and documentary evidence.

7. Learned counsel for the Respondent while supporting the order impugned would urge that considering the nature of document, recitals therein, the Court below was justified in passing the order impugned. According to learned counsel, since the possession is allegedly transferred, document needs to be properly stamped so as to receive it in evidence. As such, he has sought dismissal of the Petition.

8. Considered rival submissions.

9. Document under dispute was produced alongwith list at Exhibit 62 before the Trial Court. When the production of the said document was objected, this court in Writ Petition No. 8511 of 2019 gave liberty to the parties to seek impounding of a document if required in the facts and circumstances of the case.

10. It is not in dispute that document of which impounding was ordered vide impugned order is an unregistered document which is titled as Kharedikhat by which possession is allegedly transferred. Once the possession was transferred, it was necessary to compulsorily register the document under Section 17 of the Registration Act.

11. Insufficiently stamped document which is also not registered of which registration is mandatory cannot be received in evidence as is apparent from the provisions of Section 34 of the Bombay Stamp Act and Section 49 of the Registration Act. As far as the contention of Shri Gangakhedkar that in view of Judgment of the Apex Court in the matter of M/s. Z. Engineers Construction Pvt. Ltd. and Ameer Minhaj [Cited supra] that the documents should have been accepted subject t