IMPORTANT POINT
At the stage of admission of a document as an evidence, question of registration or non-registration in context of admissibility of document cannot arise even if it is not registered.

Sahidullah Munshi, J.—The Court : In this suit by Efcalon Tie Up Pvt. Ltd., during examination-in-chief when the learned Counsel appearing for the plaintiff attempted to tender a document titled as Memorandum of Understanding (hereinafter referred to as the ‘said MOU’) drawn on Rs.500/- non-judicial stamp paper, and prayed for marking of the same as an exhibit, learned Counsel for the defendant raised vehement objection as to the admissibility of the said MOU into evidence. Mr. Jishnu Chowdhury, learned Counsel appearing for the West Bengal Financial Corporation, sole defendant in this suit, objected to the admissibility of the document on two grounds,

1) The document is insufficiently stamped within the requirement of Section 35 of the Indian Stamp Act, 1899.

2) The document is registrable as per Section 17 of the Indian Registration Act, 1908.

2. He submits that such a document cannot be admitted into evidence. Because of such objection this Court recorded an order on 20th November, 2017 to the extent that after disposal of such objection the document may or may not be admitted into evidence and only thereafter further examination will proceed. Before deciding this question as to the admissibility of the document, namely, the said MOU, a little background of the said document, coming into existence, is required to be elucidated. The plaintiff in this suit has made a prayer for a decree for an amount of Rs.2,64,67,965.58/- (Rupees Two Crore Sixty Four Lakh Sixty Seven Thousand Nine Hundred Sixty Five and Fifty Eight Paisa) only, against the defendant in terms of paragraph 23 of the plaint.

3. Plaintiff has also prayed for interim interest, interest upon judgment and other consequential reliefs. Plaintiff’s claim is based on the said MOU. It has been stated in paragraph 19 of the plaint that in terms of the said MOU, the plaintiff was entitled to the aforesaid amount of Rs.2,38,72,006.94/- (Rupees Two Crore Thirty Eight Lakh Seventy Two Thousand Six and Ninety Four Paisa) only, being an amount obtained in T.A. No.41 of 2002. According to the plaintiff, the defendant, pursuant to the said MOU, was obliged to pay the said sum to the plaintiff. Therefore, there is no doubt that the entire decree as prayed for is based on the said MOU. Now, in the context of the claim made by the plaintiff and the execution of the MOU to meet the claim of the defendant whether or not the said document per se transfers any interest in favour of the plaintiff which is attached to immovable property or not and if such an interest is transferred through such document whether the document is chargeable under Section 3 of the Stamp Act and whether it should follow the consequence of the provisions of Sections 35 and 36 of the Stamp Act or not.

4. Mr. Jishnu Chowdhury, appearing for the defendant and in support of the objection so raised, submits that both way the plaintiff is bound to suffer for nonregistration of the document under the Indian Registration Act and for nonstamping of the document properly in view of the Stamp Act. Therefore, the document cannot be admitted into evidence. In support of his submission Mr. Jishnu Chowdhury has relied on two decisions in the case of - Perumal Ammal Minor By Mother & - Vs. - Perumal Naicker & Anr., (1921) AIR Madras 137 equivalent to 61 Ind Cas 461. Elumalai Chetty & Jagannadha - Vs. - P. Balakrishna Mudaliar, 0 66 IndCas 168.

5. The first decision in the case of Perumal Ammal the question arose whether an unregistered instrument by which a party made an immediate disposition of property consisting of mortgages, promissory notes and book-debts to another party, is valid in law or not. In the said case, the said unregistered instrument was Exhibit 50. Admissibility of Exhibit 50 is in question in the given case. In the said case it was held that according to the scheme of the Act, as amended in 1900,