Where Instrument was not required to be stamped u/s 35, no bar could be imposed due to it being not duly stamped

Vijay Vs Union of India & Ors. (Supreme Court of India)

Conclusion: When the Instrument was not chargeable with stamp duty as it was not required to be stamped, section 35 had no application and no bar could be imposed due to it being not duly stamped.

Held: Plaintiff and Defendant entered into an agreement to sell on 04.02.1998, and pursuant to that, Plaintiff was allegedly put in possession by Defendant. When Defendant denied the existence of such an agreement, Plaintiff filed a suit for specific performance of contract. In the said suit, Plaintiff moved an application to file a copy of the agreement to sell, among other documents, as secondary evidence. Initially, the said application was allowed by the 4th Additional District Judge vide order dated 17.07.2001. But when Defendant sought review of this order, the Court vide its order dated 16.12.2003 reviewed it and held that secondary evidence of an agreement to sell could not be allowed as it was not executed on a proper stamp, thus barred under section 35 of the Stamp Act. While holding so, it relied on the decision of this Court in Jupadi Kesava Rao (supra). Subsequently, the Plaintiff filed a writ petition before the High Court of Madhya Pradesh challenging the review order and the constitutional validity of Section 35 of the Stamp Act. The High Court, vide the impugned order in W.P. No. 741/2004, upheld the validity of the said section and the order of the Review Court. The present appeal was preferred against this order of the High Court. It was held that if the documents sought to be admitted were not chargeable with duty, Section 35 had no application. Since the document was dated 04.02.1988, the instrument was not chargeable with duty. It followed therefrom that when such document(s) were not required to be stamped, then no bar could be imposed due to it being not duly stamped. In the instant case, the Plaintiff’s prayer for leading the secondary evidence ought to be allowed in so far as the documents sought to be introduced as secondary evidence be taken by the concerned Court and exhibited, with its admissibility being decided independently, in accordance with law under the Evidence Act.

FULL TEXT OF THE SUPREME COURT JUDGMENT/ORDER

1. The issues that arise for consideration of this Court in the present appeal are:

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