Secondary evidence of agreements not duly stamped cannot be admitted in court unless the original instrument is produced and corrected as per legal requirements.

JUDGMENT :

PANKAJ JAIN, J.

1. Challenge is to the order dated 12th of May, 2023 passed by Civil Judge (Junior Division), Samrala, whereby application filed by the petitioner/plaintiff seeking permission to prove agreement to sell, dated 4^th of September, 2013 and its endorsement dated 27^th of April, 2014 by way of secondary evidence, stands dismissed.

2. Plaintiff filed suit for possession by way of specific performance of agreement to sell dated 28^th of February, 2014 claimed to have been executed by defendant No.1 himself as well as on behalf of Parshotam Singh son of Lal Singh @ Madhu Sudan Singh as his attorney on the basis of registered power of attorney, dated 5^th of September, 2013. The plaintiff claims that there was a prior agreement to sell dated 4^th of September, 2013 and an amount of 8,00,000/- was paid as earnest money. In order to prove the earlier agreement dated 4th of September, 2013, plaintiff filed present application. The permission has been sought to prove prior agreement to sell by leading secondary evidence. It has been claimed that defendant No.1 in his written statement, admitted execution of agreement dated 4^th of September, 2013 and receipt of 8,00,000/-. Though, it has been claimed that the defendant signed the same without knowing the contents thereof and that the amount of 8,00,000/- stands returned. Plaintiff/ petitioner claims that the photocopy of the agreement to sell, dated 4^th of September, 2013 along with endorsement thereof dated 27^th of February, 2014, is already on record. Plaintiff thus prayed for permission to lead secondary evidence to prove the same.

3. The application stands dismissed by the Trial Court holding that the document being not properly stamped and the original document having not been produced, the petitioner cannot be allowed to tender secondary evidence of an instrument in evidence in view of law laid down by Supreme Court in the case of ‘ Hariom Agrawal vs. Prakash Chand Malviya ’, (2007) 8 SCC 51

4. Having heard counsel for the parties, the issues that arise for adjudication for this Court are:

“(a) Whether the bar as contemplated under Section 35 of the Indian Stamp Act, 1899 (hereainafter referred to as ‘the Stamp Act’) applies to agreement to sell not duly stamped? and

(b) Whether copy of an agreement to sell chargeable with stamp duty but not duly stamped, be adduced as secondary evidence?”

5. Section 2 (11) of the Stamp Act defines ‘Duly Stamped’. The same reads as under:

“(11) “Duly stamped”. — “duly stamped”, as applied to an instrument, means that the instrument bears an adhesive or impressed stamp of not less than the proper amount and that such stamp has been affixed or used in accordance with the law for the time being in force in India;”

6. ‘Instrument’ is defined under Section 2 (14), which reads as under:

“(14) “Instrument”.— “instrument” includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded:”

7. Section 3 of the Stamp Act deals with ‘instruments chargeable with duty’. It will be apt to peruse the same, which reads as under:

“3. Instruments chargeable with duty. —Subject to the provisions of this Act and the exemptions contained in Schedule I, the following instruments shall be chargeable with duty of the amount indicated in that Schedule as the proper duty therefore respectively, that is to say—

(a) every instrument mentioned in that Schedule which, not having been previously executed by any person, is execu