Supreme Court of India
VIJAY KUMAR GOYAL (DEAD) THR. LR. versus NEENA RANI & ORS. on 16 September 2022
[2022] 7 S.C.R. 207
VIJAY KUMAR GOYAL (DEAD) THR. LR.
v.
NEENA RANI & ORS.
(Civil Appeal No. 6538 of 2022)
SEPTEMBER 16, 2022
[M. R. SHAH AND KRISHNA MURARI, JJ.]
Indian Stamp Act – Entry No.5 of Schedule 1-A as amendedby State of Punjab – When not applicable – Suit filed by appellant-original plaintiff for specific performance of Memorandum ofAgreement and agreement to sell – Plaintiff was directed to pay thedeficient stamp duty with penalty observing that as per Schedule 1-A, Entry No.5, the stamp duty shall be leviable u/Sub-column No.2of Column No.2 of Entry No. 23 of Schedule 1-A as amended by theState of Punjab – Revision petition, dismissed by High Court – Onappeal, held : As per Entry No.5 (cc) of Schedule 1-A applicableunder the State of Punjab, “in the case of agreement to sell followedby or evidencing delivery of possession of the immovable propertyagreed to be sold”, the stamp duty is leviable under Column No. 2of Entry No.23 of Schedule 1-A – However, in the present case, theplaintiff was already in possession prior to the execution of theaforesaid agreements as per the recitals therein – Even the plaintiffhas also not sought the possession in the suit and has in fact soughtpermanent injunction restraining the defendants from interferingin his peaceful possession and from dispossessing/causing todispossess him from the suit property – Thus, it cannot be said thatthe possession of the land in question was delivered under theagreements of which the specific performance is sought – Therefore,Entry No.5 of Schedule 1-A of the Indian Stamp Act as amended bythe State of Punjab shall not be applicable – Order of the HighCourt and Trial Court set aside – Stamp/Stamp Duty.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6538of 2022.
From the Judgment and Orders dated 12.02.2020 of the HighCourt of Punjab and Haryana at Chandigarh in Civil Revision PetitionNo. CR-3172 of 2018 (O&M).
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AShehbaz Thind, Mrs. Naresh Bakshi, M/s Bakshi & Associates,Advs. for the Appellants.
The Judgment of the Court was delivered by
M. R. SHAH, J.
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1. Feeling aggrieved and dissatisfied with the impugned judgmentBand order passed by the High Court of Punjab and Haryana at Chandigarhin Civil Revision Petition No. CR-3172 of 2018 by which the High Courthas dismissed the said revision application preferred by the appellantherein and has confirmed the order passed by the Trial Court directingthe appellant – original plaintiff to pay the deficient stamp duty alongwithCthe penalty, the original plaintiff has preferred the present appeal.
2. That the appellant herein has instituted Civil Suit before theTrial Court for specific performance of the Memorandum of Agreementdated 24.02.1996 and the agreement to sell dated 14.05.2011 with regardto the suit land. In the said suit, the Trial Court passed an order directingthe original plaintiff – appellant to pay the deficient stamp duty as leviableDunder Sub-column No. 2 of Column No. 2 of Entry No. 23 of Schedule1-A by observing that as per Schedule 1-A, Entry No. 5 with respect toMemorandum of Agreement or agreement to sell followed by orevidencing delivery of possession of the immovable property agreed tobe sold, the stamp duty shall be leviable under Sub-column No. 2 ofEColumn No. 2 of Entry No. 23 of Schedule 1-A as amended by the Stateof Punjab.
2.1 Feeling aggrieved and dissatisfied with the order passed bythe Trial Court ordering the deficient stamp duty alongwith the penaltyto be paid, the original plaintiff – appellant preferred the Civil RevisionPetition No. CR-3172 of 2018 before the High Court. By the impugnedFjudgment and order, the High Court has dismissed the said revision petition,which has given rise to the present appeal.
3. Though served, none has appeared on behalf of the respondents.
4. We have heard learned counsel appearing on behalf of theappellant. We have considered and gone through the Memorandum ofGAgreement dated 24.02.1996 and the agreement to sell dated 14.05.2011of which the specific performance has been sought.
4.1 Having gone through the said agreements, it can be seen thatthe possession has not been delivered under the said agreements. Inthese agreements, it is specifically mentioned that the possession of theH
disputed land in question was already with the appellant – Vijay Kumar.In the Memorandum of Agreement dated 24.02.1996, it is mentionedthat “the above said land is already with my brother Vijay Kumar andafter today, my brother, Vijay Kumar has become the owner in possessionof the above land like me”. In the agreement to sell dated 14.05.2011, inparagraph 2, it is stated that “that the possession of the above land isalready with party No. 2 and the party No. 2 is having possession of thesame today also”. Thus, it cannot be said that the possession of the landin question was delivered through under the said agreements of whichthe specific performance is sought. In that view of the matter, Entry No.5 of Schedule 1-A of the Indian Stamp Act as amended by the State ofPunjab shall not be applicable. As per Entry No. 5 (cc) of Schedule 1-Aapplicable under the State of Punjab, “in the case of agreement to sellfollowed by or evidencing delivery of possession of the immovableproperty agreed to be sold”, the stamp duty is leviable under ColumnNo. 2 of Entry No. 23 of Schedule 1-A. As observed hereinabove, theplaintiff was already in possession prior to the execution of the aforesaidagreements as per the recitals in the aforesaid two agreements. It is tobe noted that even the plaintiff has also not sought the possession in thesuit filed by him and has in fact sought the permanent injunction restrainingthe defendants from interfering in the peaceful possession of the plaintiffand from dispossessing or causing to dispossess the plaintiff from thesuit property.
5. In view of the above and for the reasons stated above, theorder passed by the High Court and that of the Trial Court directing theappellant – original plaintiff to pay the deficient stamp duty with penaltyapplying Sub-column No. 2 of Column No. 2 of Entry No. 23 of Schedule1-A as amended by the State of Punjab is unsustainable and the samedeserves to be quashed and set aside.
In view of the above and for the reasons stated above, the presentappeal succeeds. The impugned judgment and order passed by the HighCourt dismissing the Civil Revision Petition No. CR-3172 of 2018 andthe order passed by the Trial Court directing the appellant – originalplaintiff to pay the deficient stamp duty along with the penalty are herebyquashed and set aside.
Present appeal is accordingly allowed. No costs.
Appeal allowed.
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