Pratap Krishna Lohra, J. - (1.) PETITIONER -plaintiff has filed this writ petition to challenge impugned orders dated 24th February, 2014 (Annex. P/5) and 9th April, 2014 (Annex. P/7) passed by learned Additional Civil Judge (Junior Division) No. 1, Bhilwara (for short, 'learned Court below') in a suit for specific performance of contract.
(2.) BY order Annex. P/5, the learned Court below has opined in clear and unequivocal terms that the basis of suit, i.e., agreement to sale dated 3rd of October, 1972, is in the nature of conveyance, and being insufficiently stamped, the same is not admissible in evidence. Thereafter, while resorting to Section 37 of the Rajasthan Stamp Act, 1998 (for short, 'Act of 1998') the learned Court below impounded the document and directed petitioner -plaintiff to produce certified copy of the document with the order before the Collector (Stamps) within 15 days. It is also clarified that no further time shall be granted to the petitioner in this behalf, and posted the matter for evidence of the petitioner -plaintiff. Subsequent to that order, petitioner submitted an application by invoking sub -section (1) of Section 37of the Act of 1998 showing his readiness and willingness to pay the deficit stamp duty and penalty thereon and for prayed for impounding the document by the Court instead of sending it to the Collector (Stamps). After hearing the rival parties, by order Annex. P/7, the learned Court below declined the prayer of the petitioner. The bare necessary facts for the purpose of this writ petition are that petitioner -plaintiff filed a suit for specific performance of contract for enforcement of agreement to sale dated 3rd of October, 1972 allegedly executed in his favour by the first respondent. For seeking specific performance of contract dated 3rd of October 1972, suit was laid on 27th August, 2002. On behalf of respondent -defendant, an objection was raised about admissibility of the document, precisely, on the ground that the same is insufficiently stamped and unregistered. The objections to this effect were filed vide Annex. P/3. Responding to the objections, petitioner submitted his reply and asserted that by virtue of proviso to Section 49 of the Registration Act, 1908, there is no necessity for registration of agreement dated 3rd of October, 1972. A further plea is raised that agreement to sale is properly stamped, and therefore, same is admissible and has been rightly marked exhibit during examination -in -chief. After hearing learned counsel for the parties, the learned Court below by order Annex. P/5 found the agreement to sale as conveyance within the meaning of clause (xi) of Section 2 of the Act of 1998 and impounded the document with a direction to the petitioner -plaintiff to file it before Collector (Stamps) and submit it after paying requisite stamp duty. Later on, the petitioner made an endeavour to persuade the learned Court below by invoking sub -section (1) of Section 37 of the Act of 1998 to pay the deficit stamp duty with penalty and also tendered Rs. 100/ - by application (Annex. P/6). The said application did not find favour from the learned Court below and by Annex. P/7, same was rejected. It is in that background the petitioner has invoked supervisory jurisdiction of this Court.
(3.) LEARNED counsel for the petitioner, Mr. Sandeep Saruparia, submits that the learned Court below has committed grave and serious jurisdictional error in not exercising powers under sub -section (1) of Section 37 of the Act of 1998, therefore, both the impugned orders are not sustainable. Learned counsel further submits that the learned Court below has failed to exercise powers under sub -section (1) of Section 37 of the Act of 1998 which it ought to have exercised in the backdrop of facts and circumstances of the instant case. In support of his contentions, learned counsel for the petitioner has placed reliance on a decision of this Court in Bhawana & Ors. V/s. Chandmal [2015 AIR CC 1237 (Raj.)]. The Court, while harmoniously construing Sections 39, 41 and 42 of the Act of 1998, dilated on the powers to be exercised by the Court if it is noticed that document tendered in evidence is insufficiently stamped. The Court held: 18. A conjoint reading of provisions of Section 39, 41 & 42 of the Act makes it abundantly clear that if the respondents/plaintiffs are ready and willing to remit the amount of deficient stamp duty and penalty as provided by proviso (a) to Section 39 of the Act, after payment of such duty and penalty, the document cannot be refused as to be admitted in evidence on account of insufficiency of the stamp duty and only an authenticated copy thereof alongwith a certificate in writing stating the amount of duty and penalty levied and such amount recovered is required to be sent to the Collector (Stamp). However, if the respondents/plaintiffs are not ready to remit the amount of deficient stamp duty and penalty as provided by proviso to Section 39 of the Act then the court has to impound the document not duly stamped and make reference to the Collector for determination of the stamp duty and penalty payable notwithstanding the fact that the respondents/plaintiffs have not expressed their readiness and willingness to pay the deficient stamp duty and penalty. In any case, a document insufficiently stamped is not admissible in evidence even for collateral purposes.;