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2010 Supreme(Cal) 184
High Court of Calcutta
S.K. Mukherjee & Md. Abdul Ghani, JJ.
Gopal Kumar Bhalotla – Appellant
Versus
Anirudh Trade And Agencies Pvt. Ltd. – Respondent
F.M.A.T. No. 1569 of 2009 With C.A.N. No. 9215 of 2009
Decided On: Feb 22, 2010
Advocate Appeared:
S.P.Roychowdhury, Debasish Roy, Binay Kumar Jain, Pratap Chatterji, Dhruba Ghosh.
FAILURE TO PROPERLY STAMP A DOCUMENT DOES NOT AFFECT THE VALIDITY OF THE TRANSACTION EMBODIED THEREIN BUT MERELY RENDERS THE DOCUMENT INADMISSIBLE IN EVIDENCE.
Headnote:
INJUNCTION - AGREEMENT FOR SALE - SPECIFIC PERFORMANCE - STAMP DUTY - INDIAN STAMP ACT, 1899, SECTION 35 - CIVIL PROCEDURE CODE, 1908, ORDER 39, RULES 1 AND 2 - COURT HELD THAT FAILURE TO PROPERLY STAMP A DOCUMENT DOES NOT AFFECT THE VALIDITY OF THE TRANSACTION EMBODIED THEREIN BUT MERELY RENDERS THE DOCUMENT INADMISSIBLE IN EVIDENCE.
Fact of the Case:
PLAINTIFFS FILED A SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT, DECLARATION, AND INJUNCTION IN RESPECT OF AN AGREEMENT FOR SALE OF IMMOVABLE PROPERTY. THE TRIAL COURT REFUSED TO GRANT AN AD INTERIM INJUNCTION ON THE GROUND THAT THE PLAINTIFFS COULD NOT MAKE OUT A PRIMA FACIE CASE AND THAT THE AGREEMENT WAS NOT PROPERLY STAMPED. THE PLAINTIFFS APPEALED.
Finding of the Court:
THE COURT HELD THAT THE PLAINTIFFS WERE IN ACTUAL POSSESSION OF THE SUIT PREMISES AND THAT THE BALANCE OF CONVENIENCE AND INCONVENIENCE WAS LEANING IN THEIR FAVOUR. THE COURT FURTHER HELD THAT THE FAILURE TO PROPERLY STAMP THE AGREEMENT DID NOT AFFECT THE VALIDITY OF THE TRANSACTION EMBODIED THEREIN BUT MERELY RENDERED THE DOCUMENT INADMISSIBLE IN EVIDENCE.
Issues: 1. WHETHER THE TRIAL COURT WAS JUSTIFIED IN REFUSING TO GRANT AN AD INTERIM INJUNCTION? 2. WHETHER THE PLAINTIFFS WERE ENTITLED TO AN AD INTERIM INJUNCTION?
Ratio Decidendi: 1. THE COURT RELIED ON THE RULINGS IN AVINASH KUMAR CHAUHAN V. VIJAY KRISHNA MISHRA, 2009 (2) SCC 532, GTZ INDIA PRIVATE LIMITED V. POWER ELECTRONIC, ELECTRONIC ENGINEERS AND ORS., 2009 (4) CHN 415, AND BISWAJIT CHAKRABORTY V. MIRA SEN RAY, 2002 (2) CAL LJ 449, TO HOLD THAT THE FAILURE TO PROPERLY STAMP A DOCUMENT DOES NOT AFFECT THE VALIDITY OF THE TRANSACTION EMBODIED THEREIN BUT MERELY RENDERS THE DOCUMENT INADMISSIBLE IN EVIDENCE. 2. THE COURT ALSO CONSIDERED THE FACT THAT THE PLAINTIFFS WERE IN ACTUAL POSSESSION OF THE SUIT PREMISES AND THAT THE BALANCE OF CONVENIENCE AND INCONVENIENCE WAS LEANING IN THEIR FAVOUR.
Final Decision: THE COURT ALLOWED THE APPEAL AND SET ASIDE THE ORDER OF THE TRIAL COURT. THE COURT GRANTED AN AD INTERIM INJUNCTION RESTRAINING THE DEFENDANTS FROM DEALING WITH, DISPOSING OF, OR ENCUMBERING THE SUIT PROPERTY UNTIL THE DISPOSAL OF THE INJUNCTION PETITION PENDING IN THE COURT BELOW.
Md. Abdul Ghani, J.
1. THE present first miscellaneous appeal is at the instance of the plaintiffs and is directed against the order dated 21 st October, 2009 passed by the learned Civil Judge (Senior Division), 1st Court at Alipore, District South 24-Parganas in Title Suit No.3142 of 2009.
2. IT would appear that the plaintiffs/appellants after filing the aforesaid title suit for specific performance of contract, declaration and injunction sought for an ad interim order of injunction upon filing an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure. The record speaks that learned Civil Judge (Senior Division), 1 st Court at Alipore, 24-Parganas (South) after hearing the submissions made on behalf of the plaintiffs/ appellants as also considering the materials placed before him was pleased to refuse the prayer for ad interim order of injunction on the ground that the plaintiffs could not make out a prima facia case and also for the reason that agreement has not been properly stamped.
Being aggrieved by and dissatisfied with the impugned order the plaintiffs have come up before this Court with the present miscellaneous appeal praying for setting aside the order impugned and for obtaining an interim order of injunction as sought for in the Court below.
3. THE plaintiffs case in gist may be depicted as follows:- THE defendant No.1 as owner of the suit property entered into an agreement for sale on 14th August, 2007 with the plaintiffs concerning the suit property measuring more or less 8.16 cottahs with five storied brick built building at Rs.3.25 crores and also took an advance of Rs.1 lac from the plaintiffs as earnest money.
4. IT may be pertinent to point out that since after purchase of the suit premises, the defendant No.1 deposited all the six title deeds dated 14th November, 1994, with the defendant No,2, Standard Chartered Bank, Chowringhee Road, Kolkata, in connection with equitable mortgage of the suit premises as security for repayment of loan advanced by defendant No.2. IT was agreed upon between the parties that balance amount of consideration money being Rs.3.24 crore would be paid to the defendant No.2 by the plaintiffs for obtaining release of the mortgage of the suit premises as also the title deeds deposited with the defendant No.2 and the defendant No.1 would hand over vacant and peaceful possession of the suit premises in favour of the plaintiffs. In the manner as aforesaid plaintiffs were put in possession of the suit premises.
It has been alleged that defendant No.1 in terms of the agreement dated 14th August, 2007 intimated the defendant No 2 about the terms and conditions of the agreement and also requested said defendant to collect and receive the entire outstanding dues from the plaintiffs and also to release the mortgage as well as the deeds to the plaintiffs. The defendant No.1 also requested the defendant No.2 to issue "no dues certificate". But unfortunately the defendant No.2 did not pay any heed to the aforesaid request of the defendant No.1. Rather, defendant No.2 willfully and deliberately neglected to intimate the plaintiffs about the outstanding dues of the defendant No.1, as a result of which the sale of the suit premises could not be carried into effect. Taking advantage of the situation, the defendant No.1 in collusion with the defendant No.2 and in violation of the existing terms of the agreement is threatening the plaintiffs to be ousted from the suit premises with a view to disposing of the same to any third party of his choice. In the circumstances, the plaintiffs finding no alternative sought for an order of ad interim injunction in the Court below so that the defendants/respondents could be restrained from selling and/or alienating and encumbering the suit premises to any third party by dispossessing the plaintiffs therefrom.
5. THE only point for determination and consideration is whether the Court below was justified in passing the impugned order and whe
