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2016 Supreme(P&H) 2621
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Paramjeet Singh Dhaliwal
CR-5269 of 2015
Dilawar Singh
v.
Amandeep Singh
{Decided on 18/02/2016}
For the Petitioner:Mr. Bikramjit Singh, Advocate.
For the Respondent:Mr. Anil Chawla, Advocate.
Agreement to Sell--Part performance--When recital of delivery of possession is not there, the agreement to sell is not compulsorily registrable.
Headnote:(A) Registration Act, 1908, S.17(1A)--Agreement to Sell--Part performance--When recital of delivery of possession is not there, the agreement to sell is not compulsorily registrable, and thus does not come within the mischief of proviso to Section 49 of the Registration Act as much as the provisions of Section 53A of the Transfer of Property Act are not attracted--The agreement to sell itself does not create any right, title or interest in the immovable property, and was thus not compulsorily registrable--Specific Relief Act, 1963, S.16(c)--Transfer of Property Act, 1882, S.53A. (Para 8)
(B) Stamp Act, 1899, S.2(10) & Article 23--Agreement to Sell--Proper stamp duty--Determination of--Agreement to sell without delivery of possession cannot be termed as “conveyance” as per S.2(10) of Stamp Act, as agreement is not creating any right, title or interest the suit property except for asking for execution of sale deed--Therefore, such agreement to sell is not required to stamped as per Article 23A of Schedule 1A--Specific Relief Act, 1963, S.16(c).
(C) Stamp Act, 1899, S.35--Agreement to Sell--Admissibility of--Insufficiently stamped agreement--In the present case, the agreement to sell in question is on stamp paper of Rs.300/-, the stamp duty on agreement to sell immovable property as per clause (c) of Article 5 as applicable to Punjab is Rs.2000/- so there is deficiency of Rs.1700/- only and as per Section 35 proviso (a), the same would become admissible in evidence on payment of penalty equivalent to 10 times of the deficient portion of the stamp duty--The deficiency being of Rs.1700/-, the penalty payable comes to Rs.17,000/- and thus, this penalty and the deficiency of Rs.1,700/- i.e. Rs.18,700/- would be payable by the plaintiff for seeking admissibility of the agreement--Specific Relief Act, 1963, S.16(c). (Para 12)
Mr. Paramjeet Singh Dhaliwal, J.:- Instant revision petition has been filed for setting aside the order dated 05.08.2015 passed by learned Additional Civil Judge (Sr. Divn.), Khadoor Sahib whereby the petitioner-plaintiff has been directed to make the deficiency of stamp fee good as per the new amendment in the Indian Stamp Act, 1899 (for brevity, ‘Stamp Act’).
2. In brief, the facts relevant for disposal of this revision are to the effect that the petitioner-plaintiff filed a suit for specific performance on the basis of agreement to sell dated 19.10.2010 in respect of land measuring 16 kanals 09 marlas situated in the revenue estate of village Goindwal Sahib or in the alternative for recovery of Rs. 22,00,000/- and suit for permanent injunction restraining the defendant from dispossessing the plaintiff from his peaceful possession. When the suit was in progress, it transpired that agreement to sell dated 19.10.2010 has been written on stamp paper of Rs.300/- whereas as per amended schedule of the Stamp Act w.e.f. 03.09.2009, an agreement to sell is required to be executed on a stamp paper of Rs.2000/-. For that purpose, the plaintiff moved an application under Section 35 of the Stamp Act, 1877 that he is ready to pay the deficient stamp duty and also the penalty as per the provisions of the Stamp Act so that the same may be admitted in evidence. The defendant filed reply to the said application with the averments that possession of the suit land has been delivered by respondent-defendant (vendor) to the petitioner-plaintiff, therefore, the agreement to sell has become conveyance deed. It should be stamped like a conveyance deed and the stamp duty is required to be affixed on the total consideration of Rs.38,24,625/-.
3. After considering the pleadings and arguments of learned counsel for the parties, the trial court came to the conclusion that agreement to sell has been reduced in writing and possession has been given to the purchaser, therefore, the stamp duty will be paid like the conveyance deed as per the amended provisions and reliance has been placed upon Avinash Kumar Chauhan Vs. Vijay krishna Mishra, [2009(1) Law Herald (SC) 360] : 2009 (1) RCR (Civil). Hence, this revision.
4. I have heard learned counsel for the parties and perused the record.
5. Learned counsel for the petitioner contends that agreement to sell was not required to be registered as no possession was delivered. He has shown the vernacular of the agreement to sell dated 19.10.2010. The agreement has been executed on a stamp paper of Rs.300/- whereas as per the amended provisions of the Stamp Act, it was required to be executed on a stamp paper of Rs.2000/-, as such there is a deficiency of stamp paper of Rs.1700/-. He further contends that he is ready to pay the penalty as per Section 35 of the Stamp Act. He further contends that if possession of the property is not delivered, agreement to sell is not required to be registered.
6. Per contra, learned counsel for the respondent vehemently opposes the contentions of learned counsel for the petitioner and contends that the agreement to sell was required to be registered as the possession of the property has been delivered to the petitioner. The agreement to sell is compulsorily registrable and full stamp fee is required to be paid.
7. I have given my anxious thoughts in consideration to the contentions raised by learned counsel for the parties and perused the record.
8. When recital of delivery of possession is not there, the agreement to sell is not compulsorily registrable under Section 17(1A) of the Registration Act, 1908 (for brevity, ‘Registration Act’), and thus does not come within the mischief of proviso to Section 49 of the Registration Act as much as the provisions of Section 53A of the Transfer of Property Act are not attracted. The agreement to sell itself does not create any right, title or interest in the immovable property, and was thus not compulsorily registrable as per Clause (
