AD- 24 Ct No.16

22.04.2025 (SSS)

FAT 397 of 2023 With CAN 1 of 2023 Shew Prakash Jaiswal and Ors.

Vs.

Madan Lal Shaw Mr. Partha Chakraborty, Mr. Rishabh Dutta Gupta …..For the Appellants.

Mr. Sanjoy Bose, Mr. P. B. Mallick, Mr. Sayandeep Chanda ….For the Respondent.

1. Affidavit of service filed today be kept on record. 2. The delay in filing the affidavit-in-reply is condoned and the same is also taken on record.

3. Several arguments are made by the appellants. It is contended that all the legal heirs of the deceased defendant were not substituted/impleaded and as such, the impugned decree could not be passed. Furthermore, it is contended that a money receipt, which was treated to be an agreement for sale to grant the impugned decree of specific performance, was a rent receipt and could not be termed as an agreement.

4. More importantly, it is argued that the money receipt which was marked as Exhibit 1 in the suit and treated to be the agreement for sale which was directed to be specifically performed was unstamped and unregistered.

5. As such, it is contended by the appellants that the said document could not be looked into by the Trial Court and could not form the basis of the impugned decree.

6. Learned Counsel appearing for the appellants places reliance on Sections 33 and 35 in particular of the Indian Stamp Act in support of his contentions. Learned Counsel also cites a Seven-Judge Bench decision of the Supreme Court in the matter of Interplay Between Arbitration Agreements under Arbitration and Conciliation Act, 1996 and Stamp Act, 1899, in Re reported at (2024) 6 SCC 1 for the proposition that agreements which are not stamped or are inadequately stamped are inadmissible in evidence under Section 35 of the Stamp Act but such agreements are not rendered void or void ab initio or unenforceable and that non-stamping or inadequate stamping is a curable defect.

7. Learned Counsel appearing for the respondent, on the other hand, contends that under the proviso to Section 49 of the Registration Act, 1908, an unregistered document affecting immovable property and required by the said Act or the Transfer of Property Act to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act or as evidence of any collateral transaction not required to be effected by registered instrument.

8. Learned Counsel places reliance on a Two- Judge Bench decision of the Supreme Court in the matter of R. Hemalatha vs. Kashthuri reported at (2023) 10 SCC 725, where the Hon’ble Supreme Court considered the effect of Section 49, proviso and reiterated such provision.

9. Several arguable questions have been raised in the matter.

10. In the present case, the learned Trial Judge proceeded on the premise that since the agreement- in-question, which was primarily in the form of a money receipt, was marked as Exhibit without any objection on the part of the defendant/appellant, the question of insufficiency of stamp could not be raised at a subsequent stage and the document was deemed to be admissible.

11. Moreover, in the judgment of Interplay Between Arbitration Agreements under Arbitration and Conciliation Act, 1996 and Stamp Act, 1899, in Re (supra), the interplay between Sections 33 and 35 on the one hand and Section 36 of the Indian Stamp Act was not discussed or adverted to at all. As such, the said judgment is not a proposition on the effect of Section 36 of the Indian Stamp Act.

12. Section 36 provides that where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. Taking a literal interpretation of the said provision, the appeal can be deemed to be a continuation of the suit and since no objection was raised by the defendant/appellant while the said document was marked as Exhibit, the same question cannot be ra