JUDGMENT

Sharad Kumar Sharma, J. - This is a defendants' Second Appeal, where a challenge has been given to the judgment and decree dated 15th December, 2004, as was passed by the District Judge, Pauri Garhwal in Civil Appeal No. 4 of 2002, as well as, against the judgment and decree dated 29th November, 2001, as was passed by the Court of Civil Judge (Senior Division), Pauri Garhwal, in Original Suit No. 36 of 1999, M/s Kailash Rosin Factory, Partnership Firm Muni-Ki-Reti Vs. State of U.P. and others.

2. By virtue of the judgments impugned, the issue which stood adjudicated was as against the appellants/State, it was an issue pertaining to the levying of the stamp duty on the conveyance of resin, under a contract, which was made in favour of the plaintiff/respondent.

3. Another issue, which was also agitated was pertaining to the impact of non compliance of the provisions contained under Section 80 of the C.P.C. As a result thereto, the Suit, the interpretation given was that the Suit instituted by the plaintiff/respondent, being Suit No. 36 of 1999, stood adjudicated by partially decreeing the suit and confining the recovery to the extent of Rs.62,906.80 paise, as it has been observed by the Trial Court's judgment in its para 32, which is referred to hereunder :-

4. This judgement, on being given a challenge in an Appeal, being Civil Appeal No. 4 of 2002, by the appellant, herein, has been affirmed with a partial modification of the decree of the Trial Court in the following manner :

5. Being aggrieved against the aforesaid judgments, the Second Appeal was preferred by the defendant/appellant before this Court on 2nd September, 2005. The Coordinate Bench of this Court, while admitting the Appeal vide its order dated 5th September, 2005, had formulated the following substantial questions of law which was called upon to be answered by this Court :

"1. Whether, the stamp duty was payable under the provisions of the Indian Stamp Act, 1899 on conveyance for sale of resin in question ?

2. Whether, suit was bad in law in the absence of notice under Section 80 of the Code of Civil Procedure, 1908 ?"

6. Despite of due service of notice on the plaintiff / respondents, when they have not put in appearance in the Second Appeal, hence, this Court by an order dated 25th February, 2021, had directed the Second Appeal to proceed ex parte, and it was directed to be posted for an ex parte hearing. Hence, the matter is listed today. None appears for the plaintiff/respondents, even today, nor the order dated 25th February, 2021, directing to proceed ex parte against them have been sought to be recalled, by any one by filing any application, for the said prayer. Hence, this Court has got no other option except to hear the learned counsel for the appellants.

7. In answer to the first substantial question of law, which has been framed, to the effect, as to whether the provisions of the Stamp Act, 1899, would be applicable on the sale of resin, in question, and whether the said sale would be treated as to be the conveyance or not ?, in order to levy stamp duty on such sale of rosin.

8. The learned counsel for the appellants had drawn attention of this Court, that the said aspect and the issue, about the legal requirement of the imposition of the stamp duty on the sale of resin, whether it amounts to be a conveyance or not has already been settled by the Division Bench of Allahabad High Court in a judgment, which was rendered and reported in , Bhatt Industries and others Vs. Divisional Forest Officer, Almora and others, (1999) 3 AWC 2291 wherein, the Division Bench in its reasoning assigned from para 4 to 10, had upheld the applicability of the proviso to Section 3 (bb), and the exemption granted, to the State Government, to pay the stamp duty from the liability to pay the stamp duty, was not extended to be made applicable on the sale made of resin and the said issue was decided in favour of the State, and particularly, a reference may be had to para 8, 9