Back
2023 Supreme(MP) 158
IN THE HIGH COURT OF MADHYA PRADESH
Vivek Rusia, J.
Satyanarayan Verma v. Sandeep Yadav & another
Miscellaneous Petition No. 605 of 2023 (Indore);
Decided on 6.2.2023
Jitendra Verma for petitioner
Headnote:
¼1½ LVkai vfèkfu;e] 1899 && èkkjk 35] ijarqd ¼x½ rFkk 33 && jftLVªahdj.k vfèkfu;e] 1908 && èkkjk 49 &&LVkai 'kqYd dk fook|d && #- 1]000@& d¢ LVkai ij foØ; dk djkj && dCtk ugÈ fn;k x;k && lafonk d¢ fofufnZ"V vuqikyu d¢ fy, okn && çfroknh us djkj d¨ ifjc) djus ds fy, vkosnu ;g dgrs gq, fd;k fd djkj eq[Rkkjukek Òh gS] 5 çfr'kr d¢ nj ls LVkai 'kqYd lans; gS && djkj ds [kaM ¼4½ d¢ vèkhu fn, x, çkfèkdkj d¢ fo"k; esa d¨Ã vuqr¨"k ugÈ pkgk x;k && nLrkost vjftLVaªhÑr foys[k gS t¨ èkkjk 49¼x½ d¢ ijarqd d¢ vèkhu lk{; esa vuqKs; gS && foØ; d¢ djkj ij LVkai 'kqYd #- 1]000@& lans; gS && og igys ls gh lanÙk && lafonk ;k djkj fofèkor LVkafir le>k tk,xkA 2015 ¼3½ e-ç- ohDyh u¨V~l 99] 2009 ¼1½ ,e ih ,y ts 176] 2017 ¼3½ ,e ih ,y ts 571 rFkk ¼2014½ 1 ,l lh lh 618 fufnZ"VA ¼iSjk 8 ls 10
¼2½ jftLVªhdj.k vfèkfu;e] 1908 && èkkjk 49] ijarqd ¼x½ && nLrkost dh lk{; esa xzkárk && #- 1]000@& d¢ LVkai ij foØ; dk vjftLVªhÑr djkj && dCtk ugÈ fn;k x;k && foys[k fofèkor LVkafir le>k tk,xk && ,slk nLrkost lk{; esa vuqKs; gSA ¼iSjk 8 ,oa 10
(1) Stamp Act, 1899 -- Ss. 35, Proviso (c) and 33 -- Registration Act, 1908 -- S. 49 -- issue of stamp duty -- agreement to sell on stamp paper of Rs. 1,000/- -- possession not given -- suit for specific performance of contract -- defendant filed application for impounding of agreement saying that agreement is also Power of Attorney, stamp duty at rate of 5% is liable to be paid -- no relief sought in respect of authority given under clause (vi) of agreement -- document is unregistered deed which is permissible in evidence under proviso to section 49 (c) -- stamp duty of Rs. 1,000/- is payable on agreement to sell -- same already paid -- contract or agreement shall be deemed to be duly stamped. 2015 (III) MPWN 99, 2009 (1) MPLJ 176, 2017 (3) MPLJ 571 and (2014) 1 SCC 618 referred to. [Paras 8 to 10
(2) Registration Act, 1908 -- S. 49, Proviso (C) -- admissibility of document in evidence -- unregistered agreement to sell on stamp paper of Rs. 1,000/- -- possession not given -- deed shall be deemed to be duly stamped -- such document is permissible in evidence.
[Paras 8 & 10
ORDER
1. Petitioner has filed this present petition being aggrieved by the order dated 9.11.2022 whereby application filed under Order 11 rule 12 and 14 of C.P.C. has been dismissed.
The facts of the case in short are as under:-
2. Plaintiff Sandeep Yadav has filed a suit for specific performance of the contract and a permanent injunction. Defendant No.1 is an owner of agricultural land (described in Para 2 of the plaint). He entered into an agreement for the sale of the suit land with the plaintiff on 15.6.2021 at the rate of Rs.401 per square foot. The plaintiff was required to make full payment on or before 21.11.2021. The plaintiff made an advance payment of Rs.10,50,000/- at the time of execution of the agreement. Thereafter, further payments were made by way of cheques to defendant No. 1. According to the plaintiff, he was always ready and willing to get the sale deed executed. As per the terms and conditions of the agreement, he sought permission from defendant No.1 to go for an agreement to sale with another person for which he permitted him to do so. The plaintiff entered into an agreement to sale with Smt. Ranjana Yadav and Rajkumar on 2.09.2021 and made partial payment to defendant No. 1 but later on the said agreement has come to an end and defendant No. 1 returned the cheques to them. According to the plaintiff despite the cancellation of the aforesaid deal he is still willing to get the sale deed executed in his favour. Hence, he filed the present suit. The plaintiff has valued the suit at Rs.75,96,920/- and paid the maximum amount of Court fees of Rs.1,50,000/-.
3. The plaintiff also filed an application under Order 39 Rule 1 & 2 seeking a temporary injunction against the defendant that he restrained not to eliminate the suit property to a third person.
4. Defendant No.1 filed a written statement as well as a reply to the application for temporary injunction. Before the argument on this application filed for a temporary injunction, defendant No.1 filed an application under section 33 & 35 Stamp Act, 1899 that the agreement to sale dated 2.9.2021 is also the Power of Attorney whereby the defendant No.1 has also given an authority to the plaintiff to sale the suit property to the third person, therefore, the stamp duty at the rate of 5% i.e. Rs.3,79,346 is liable to be paid. The aforesaid application was opposed by the plaintiff and vide impugned order dated 9.11.2022, the learned Court has dismissed the application. Hence, the present petition before this Court.
5. Shri Verma, learned counsel for the petitioner/defendant No.1 submitted that although the suit is filed seeking relief of specific performance of contract dated 15.6.2021 but by way of Clause-(vi), the defendant gave the Power of Attorney to the plaintiff to transfer the suit land to third person during the validity of the agreement. Therefore, this Clause-(vi) makes an agreement to sale, a Power of Attorney which attracts the stamp duty at the rate of 5%. This fact has been brought to the knowledge of the Court, therefore, it is the duty of the Court to get the documents impounded before proceeding with the matter. In support of his contention, he has placed reliance on the judgments in the case of Amit Dixit v. Smt. Sadhana Singh & ors. reported in 2015 (III) MPWN 99, Narbada Prasad Agrawal v. Tarun Bhawasar reported in 2009 (1) MPLJ 176 and D.K. Construction v. State of M.P. reported in 2017 (3) MPLJ 571.
6. Learned counsel further submitted that though the document in question has been named as an agreement to sale but in fact it is the Power of Attorney. The recital of the document should be a deciding factor about the admissibility of the document and in support of his contention, he has placed reliance on a judgment passed by apex Court in the case of Omprakash v. Laxminarayan and Others reported in 2014 (1) SCC 618.
Analysis and conclusion
7. Admittedly, the plaintiff and defendant No.1 entered into an agreement to sale dated 15.6.2021 and the plaintiff
