Order 1

Order Details: Notice of Motion
Pdf Text: Order on NM No.1132/18 in Suit No.7646/98
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1132 OF 2018
IN
SUMMARY SUIT NO. 7646 OF 1998
(HIGH COURT SUIT NO.397 OF 1998)
(CNR: MHCC010036622018)
C.P. Ships (UK) Ltd. & Another ….Plaintiffs
versus
Wax Oils Pvt. Ltd. & Another ... Defendants
Appearance:
Shri. Vishal Talsania I/b Motiwala & Co., Advocate for plaintiff.
Shri. K.D. Shah, Advocate for defendant.
CORUM : SMT. S.S. NAGUR,
AD HOC JUDGE &
ASST. SESSIONS JUDGE,
(C.R.NO.13)
DATE : 23/01/2019
ORAL ORDER
1) Notice of Motion is filed by the defendant No.1 to
impound the document of undertaking/ guarantee dated
5/10/55 produced by plaintiff as it is not properly stamped as
required by Bombay Stamp Act and to remove the said document
being admitted in evidence.
2) The Notice of Motion is supported by affidavit of
Shri. Priyank Sarvaiya. The defendants contended that the
plaintiff have produced document of Undertaking/Guarantee
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dated 5/10/95. The defendant has challenged the contents of
said document. They have also stated in the written statement
that said document is not properly stamped as required under
Bombay Stamp Act. The document is on stamp paper of Rs.100/.
The contents in the document is “if the container is lost while in
our custody, we shall pay you the cost of the container and the
custom duty applicable on the container.” The plaintiff has
claimed an amount of Rs.15,70,560/ for the loss of the
container. Value of the container is Rs. 1,70,000/ as per the
insurance policy. The plaintiff have not paid the proper stamp
duty required. Hence, prayed to allow Notice of Motion.
3) The plaintiff filed reply by way of affidavit of Shri.
Haresh Thadani, General Manager of second plaintiff wherein
contents of Notice of Motion was denied. The plaintiff has come
with the defence as application is not tenable. The agreement/
Undertaking dated 5/10/95 has already been exhibited as Ex.18
after arguments of both the sides. The order of Hon'ble High
Court is that, “(2) The period of limitation for an appeal from
a decree or order of the City Court shall be thirty days from
the day of such decree or order.”
4) The defendants have not filed appeal against the
above orders. The period of appeal is barred u/s. 15 of Bombay
City Civil Rules Act, 1948. The Notice of Motion is by way of
review which cannot be allowed. There is no averment in the
written statement to impound the document. Section 35 of
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Bombay Stamp Act prohibits the documents to be impounded
which are marked as exhibit. On the contrary, the Bombay Stamp
Act provides Rs. 20/ for document as per the Article 5(4) of
Bombay Stamp Act as applicable in 1995. The bond is on
Rs.100/ stamp. Hence, prayed to reject the application.
5) Rejoinder affidavit is filed by Shri. Priyank Sarvaiya
of the defendant No.1 whereby he has denied the contents of
reply affidavit filed by the plaintiff.
6) In view of the above pleadings, following points arise
for my determination and my findings with reasons therefor are
as follows :
Sr.No. Point Reason
1. Whether the document of
Undertaking/Guarantee dated 5/10/95
produced by the plaintiff is to be
impounded under Bombay Stamp Act and
remove from being admitted in evidence?
NO
2. What order? Application is
rejected.
R E A S O N S
7) Heard Ld. Advocate Shri.Vishal Talsania for plaintiff
and Ld. Advocate Shri. K.D. Shah for defendant. Perused Notice
of Motion and say. I have also gone through the record.
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AS TO POINT NO.1 & 2:
8) Advocate Shri. Shah for defendant has drawn my
attention towards the document dated 5/10/95. The document is
in the form of agreement. It is not a bond. Bond is executed by
one person. Therefore, the said bond executed is not on proper
stamp. Advocate Mr. Shah for defendant has relied on following
authorities:
a) Santosh Anant Raut Vs. Pukharaj Chogmal
Rathod & Anr. 2010 ALL MR (Supp.)529; that if the
document is insufficiently stamped is sought to be
tendered in evidence the court has power U/s. 33 of
Stamp Act to impound the document. The court is
under obligation to send a true copy of the said
document to the adjudication of the Collector in
accordance with SubSection (3) of Sec. 32A of the
said Act only after adjudication is made by the
Collector, a party relying upon the document will have
to pay deficit stamp duty and penalty. The Collector
will issue certificate for the compliance with
requirement of payment of deficit stamp duty and
penalty. Thereafter the document can be admitted in
evidence if the same is proved.
b) Controller of Rationing, Mumbai & Anr. V/s.
Bhavsar Construction Co. Pvt. Ltd. Mumbai &
Anr., 2010 ALL MR (Supp.) 539;
c) State of Kerala and Ors. Vs. Medowell and Co.
Ltd., AIR 1995 Supreme Court 1445; that Sec.2(a)
(1) of Kerala Stamp Act defines bond that includes any
instrument whereby a person obliges himself to pay
money to another, on condition that the obligation shall
be void if a specified act is performed or is not
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performed. Therefore, the bond in question being
indemnity bond must therefore be assessed to duty under
Entry 32 of the schedule.
d) Ramesh Vithalrao Thakre and Anr. V/s. State of
Maharashtra, AIR 1995 Supreme Court 1453;
e) K. Mallaya Lachmayya Gop. Vs. Prabhakarrao
Marotrao Dhote, AIR 1976 Bombay 234; that though
the document is styled as promissory note, the contents
indicate that it was never intended to be so. By the
document payment of amount is acknowledged and
liability to pay the same is agreed in presence of the
witnesses. Time stipulated for payment is three months.
In case of default it is provided that recovery be made as
may be permissible by means of law. The terms stated in
the document are declared to be binding on the heirs as
well as the estate of the executant. Therefore, the
document cannot be called as a promissory note.
f) Kisangopal Vs. Smt. Narmadabai and Ors, AIR
1976 Bombay 238;
g) K. Mallesh Vs. K. Narender & Ors., 2016(4)
Mh.L.J. 193; that admissibility, reliability and
registrability of the documents shall be considered
independently only at the time of hearing of the trial and
not prior thereto.
h) Shailesh Monohar Patil Vs. Thane Municipal
Corporation & Ors.,2016(4) Mh. L.J. 194;
i) SMS Tea Estate Pvt. Ltd. Vs. Chandmari Tea Co.
Pvt. Ltd., (2011) 14 Supreme Court 66; that the
procedure to be adopted where the arbitration clause is
contained in a document which is not registered (but
compulsorily registerable) and which is not duly
stamped.
22.1 The court should, before admitting any document
into evidence or acting upon such document, examine
whether the instrument/document is duly stamped and
whether it is an instrument which is compulsorily
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registerable.
22.2 If the document is found to be not duly stamped,
Section 35 of the Stamp Act bars the said document
being acted upon. Consequently, even the arbitration
clause therein cannot be acted upon. The court should
then proceed to impound the document under Section 33
of the Stamp Act and follow the procedure under Section
35 and 38 of the Stamp Act.
22.3 If the document is found to be duly stamped, or if
the deficit stamp duty and penalty is paid, either before
the court or before the Collector (as contemplated in
Section 35 or 40 Section of the Stamp Act), and the
defect with reference to deficit stamp is cured, the court
may treat the document as duly stamped.
22.4 Once the document is found to be duly stamped, the
court shall proceed to consider whether the document is
compulsorily registerarble. If the document is found to be
not compulsorily registerable, the court can act upon the
arbitration agreement, without any impediment.
j) Chandran Vs. State of Kerala (2011) 14
Supreme Court Cases 77
k) Namdeorao B. Bujade & Ors. Vs.Ruprao H. Dhole
& Ors.,writ petition No.2557/06, Nagpur Bench,
Nagpur; that whether such instrument is tendered in
evidence, the court has to impound it as obligated by
section 33 of the Bombay Stamp Act and then proceed as
required by Section 34. Unless the procedure under the
Stamp Act is scrupulously followed by the Court, a
document which is not duly stamped is not liable to be
looked into for any purpose or received in evidence. The
question of inviting the opposite party to cross examine
the witness to prove such document does not arise. The
opposite party cannot be compelled to cross examine the
witness unless the procedure contemplated under sections
33, 34 and in particular 37 of the Act of 1958 is
scrupulously complied with.
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9) On the other hand, Advocate Shri. Talsania for
plaintiff argued that once document are admitted and marked
exhibit, then they cannot be impounded as per Section 35 of
Bombay Stamp Act. On the contrary, Article 5(4) of Bombay
Stamp Act prescribes the stamp of Rs.20/ as per Article 13. The
bond is on Rs.100 stamp. Therefore, the contention of the
defendants itself in their affidavit reply about the Article 5(4) and
applicability of Article 13 which prescribes the stamp of Rs.20/ is
complied on the bond id properly stamped.
10) Advocate Shri. Shah for the defendant has relied on
the para 91 of the authorities relied by the plaintiff 2008 (6)
Mh.L.J. Hemandra Vs. Subodh that, subject to proof of the
document and contents thereof the court can allow the party to
place on record a document for identification. On the other hand,
advocate Shri. Talsania for plaintiff has argued that the
authorities relied by the defendant are on different facts.
Therefore, ratio of all the said authorities are not applicable.
11) On perusal of Ex.10 the compilation of the
documents filed by the plaintiff. The say is filed by defendant
Nos.1 and 2 stating that document at Sr No.2 of this compilation
of the document is agreement/ undertaking or guarantee given
by 1st and 2nd defendant to the second plaintiff dated 5/10/95 is
admitted but contents denied. The plaintiff has adduced the
evidence of Mr. Lionel Goveas at Ex.9 on 4/9/13. Issues are
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framed by my Predecessor on 12/2/13. The issue No.1 is that 'Do
the plaintiffs prove that on 5/10/95 both the defendants have
executed an agreement to pay container detention and
demurrage charges?' The defendant has disputed only the
contents of the document but admitted execution of the
document. It is reflected in roznama dated 6/2/18 (Ex.18) that
advocate Shri. Shah for defendant No.1 was present and advocate
Shri. K.D. Shah was also present. All the documents were marked
exhibit.
12) Thereafter, on 13/3/18 Notice of Motion is filed by
the defendant No.1. Now the defendant No.1 has came with this
Notice of Motion to impound the document which is already
exhibited on the basis of document admission and denial of the
contents of the document. Defendant No.1 in para 5 of written
statement has objected the letter of guaratee dated 5/10/95 on
the ground that it is not proper and cannot be adduced in
evidence. Para 10 of defendant's statement statement stated that
these defendants are not liable to pay the charges. It is significant
under the letter dated 5/10/95 there is no mention on charges at
all. The document though admitted to mark the exhibit, the
defendants denied the contents of the document. Issue No.1 is
insufficient to prove the execution of document. It is only marked
as exhibit. The contents of the document is to be proved by the
plaintiff. Mere marking of document on the basis of admission to
exhibit the document cannot be said to be proof of the contents
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of document.
13) The defendant himself has filed rejoinder affidavit
stating clause Article 13 of Bombay Stamp Act which provides
court fee stamp of Rs.20/. Hence, the Notice of Motion of the
defendant No.1 to impound document and remove the exhibit is
not tenable. Hence, pass following order:
ORDER
1) Application is rejected.
2) No order as to cost.
(S.S. Nagur)
Date : 23/01/2019 AdHoc Judge &
Asst. Sessions Judge,
City Civil Court,
Greater Mumbai.
Dictated on : 23/01/2019
Transcribed on : 14/02/2019
Signed on : 14/02/2019
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“CERTIFIED TO BE TRUE AND CORRECT, COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
DATE & TIME OF UPLOADING :NAME OF STENOGRAPHER
14.02.2019 & 5.46 p.m. : Mrs. S.A. Shekade (LG)
Name of the Judge (with Court no.) : HHJ Smt. S.S. Nagur
(CR no. 13)
Date of pronouncement of Judgment/ : 23.01.2019
Order
Judgment/Order signed by the P.O. on : 14.02.2019
Judgment/Order uploaded on : 14.02.2019
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