GOPI KRISHNA TRIVEDIversusSUDAMA PRASAD OJHA

                            [2008] 13 S.C.R 10


r\                     GOPI KRISHNA TRIVEDI
                                    v.
                      SUDAMA PRASAD OJHA
                   (Civil Appeal No. 5414 of 2008)
                        SEPTEMBER 1, 2008
B
         [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
                         SHARMA, JJ]

          Stamp Act, 1899:
c          s. 2(14)- "Instrument"- Impounding of- Document con-
     taining terms and conditions of agreement for sale of immov-
     able property - HELD.· High Court has rightly held that docu-
     ment in question being an agreement for sale, stamp duty will
     have to be paid by treating the document to be an 'instrument'
D as defined in s. 2(14).
          CIVILAPPELLATE JURISDICTION: Civil Appeal No. 5414
     of 2008
       From the Judgment and final Order dated 6.11.2006 of
E the High Court of Calcutta in C.O. No. 3122/2006
          R.C. Gubrele, K.R. Gupta, Vivek Sharma, Nanita Sharma,
     Satbir S. Pillania and Suresh Kumar Sharma for the Appellant.
          S.K. Bhattacharya for the Respondent.
F         The Order of the Court was delivered by
           Dr. ARIJIT PASAYAT, J. Heard learned counsel for the
     parties.
          Leave granted.
G
           Challenge in this appeal is to the order passed by a
     learned Single Judge of the Calcutta High Court allowing the
     revision petition filed by the respondent. In a Suit for specific   ...
     performance of the contract for sale of immovable property, the
H                                   10
                       GOPI KRISHNA TRIVEDI v. SUDAMA                     11
                      PRASAD OJHA [DR ARIJIT PASAYAT, J.]

           present respondent took the stand that he had entered into an A
           oral agreement with the defendant, i.e. the present appellant
           for purchase of the Suit property for a consideration of
           Rs.6,01,000/-. Following the execution of the contract, an amount
           of Rs.3,51,000/- was stated to have been paid. It was followed
           by another payment of Rs.1, 11,618/-. The defendant acknowl- B
           edged the factum of acceptance of part payment of the consid-
           eration amount. When the Suit came up for hearing, the respon-
           dent came up with the application for accepting certain docu-
           ments, i.e. the documents containing the terms and conditions
           of agreement and certain rent receipts. The appellant took the c
           stand that these documents cannot be admitted because there
           was no payment of stamp duty. The Trial Court took the view
           that the document is nothing but a letter incorporating the terms
           and conditions of an agreement for sale of a property and the ·
           receipts were just acknowledgment of the factum of acceptance
                                                                             0
           of money. Accordingly, the Trial Court refused to impound the
           aforesaid documents.
                Challenging the order, a revision petition was filed before
           the High Court.
                                                                               r::
                 Reliance was placed before the High Court on a decision       '-
           of this Court in Brij Mohan and Ors. Vs. Sugra Begum and
           Ors. (1990 (4) sec 147) to contend that when the vital and
           fundamental terms of an agreement for sale of immovable prop-
           erty were effected through an oral agreement, the written agree-
     -1    ment incorporating the terms and conditions of the oral agree-      F
           ment would be deemed to be a formal agreement only. Since
           no rights or liabilities have been created through the document
           incorporating the terms and conditions of oral agreement, it can-
           not be called to be an instrument either.
                                                                               G
                The High Court, after considering the rival submissions
           and with reference to explanation appended to item No.5 of
     ;..   Schedule 1-A of Stamp Duty on Instruments in West Bengal,
           concluded as follows:
..              ''The purported letter contains all the terms and conditions   H
    12       SUPREME COURT REPORTS                  [2008] 13 S.C.R.


A        of an agreement for sale of immovable property. What
         were the terms and conditions of the alleged oral
         agreement are not known. There is nothing on record to
         show that rights and interest had been created following
         execution of an oral agreement. What we find is the
B        existence of a document incorporating of terms and
         conditions of an agreement for sale of an immovable
         property and receipts acknowledging receipts of
         consideration amount. The agreements containing terms
         and conditions for transfer of an immovable property, as
         such, are required to be properly stamped in terms of the
c        recent amendment of Stamp Act in West Bengal.
         Adequate stamp not having been paid, the trial court is
         not right in making the observation that the documents in
         question are not to be impounded. Since it is the
         agreement for sale, stamp duty will have to be paid in
D
         terms of Schedule 1A as amended. Right and liability
         having been created or purported to have been created,
         transferred and extended or recorded, the documents in
         question will come within the meaning of "instrument" as
         defined in Section 2(14) of the Indian Stamp Act."
E
         Ultimately, the High Court held that right and liability hav-
    ing been created or purported to have been transferred and
    extended or created, the documents in question come within·
    the meaning of 'instrument' as defined in Section 2(14) of the
F   Indian Stamp Act, 1899 (in short 'the Act'). Therefore, the revi-
    sion petition was allowed and the Trial Court was directed to
    take steps for impounding the documents before having been
    the documents being marked as exhibits.
         Learned counsel for the appellant submitted that essen-
G tially the dispute related to the terms and conditions in an oral
  agreement and, therefore, the High Court was not justified in its
  view.
      Learned counsel for the respondent, on the other hand,
H supported the judgment of the High Court.                              )
             GOPI KRISHNA TRIVEDI v. SUDAMA                  13
            PRASAD OJHA [DR. ARIJIT PASAYAT, J.]

      In view of what has been stated in Brij Mohan's case (su-   A
pra), the High Court was right in holding that the document in
question being an agreement for sale, stamp duty will have to
be paid by treating the document to be an 'instrument', as de-
fined in Section 2(14) of the Act.

       The appeal fails and is dismissed.                         B

R.P.                                        Appeal dismissed.