Stamp Act
Section 35
Stamp Duty | Deficient |Objection related to deficiency in stamp duty | such objection is required to be decided before proceeding further
Civil Procedure Code, 1908 (V of 1908) Order XIII Rule 8 – Indian Stamp Act, 1899, Article 23, Section 35 - Application moved to impound the power of attorneys - The objection related to deficiency in stamp duty on a power of attorney which the appellants claim to be conveyance, depends upon the finding regarding delivery of possession in terms of the power of attorney - Generally speaking, such objection is required to be decided before proceeding further - However, in a case where evidence is required to determine the nature of the document, it is reasonable to defer the admissibility of a document for insufficient stamp duty at the time of final decision in the suit. #2020 SCeJ 87
Unless the stamp duty and penalty due in respect of the instrument is paid, the court cannot act upon the instrument
Section 35 of the Stamp Act, unless the stamp duty and penalty due in respect of the instrument is paid, the court cannot act upon the instrument, which means that it cannot act upon the arbitration agreement also which is part of the instrument. Section 35 of the Stamp Act is distinct and different from Section 49 of the Registration Act in regard to an unregistered document. Section 35 of the Stamp Act, does not contain a proviso like Section 49 of the Registration Act enabling the instrument to be used to establish a collateral transaction.
When a lease deed or any other instrument is relied upon as containing the arbitration agreement, the Court is required to consider at the outset, whether the document is properly stamped or not. It has been held, that even when an objection in that behalf is not raised, it is the duty of the Court to consider the issue. It has further been held, that if the Court comes to the conclusion, that the instrument is not properly stamped, it should be impounded and dealt with, in the manner specified in Section 38 of the Stamp Act, 1899. It has also been held, that the Court cannot act upon such a document or the arbitration clause therein. However, if the deficit duty and penalty is paid in the manner set out in Section 35 or Section 40 of the Stamp Act, 1899, the document can be acted upon or admitted in evidence. SMS Tea Estates Private Limited v. Chandmari Tea Company Private Limited, (2011) 14 SCC 66
Stamp Duty | Deficient | Even when an objection in that behalf is not raised, it is the duty of the Court to consider the issue
Arbitration and Conciliation Act, 1996 - Section 11(6) - When a lease deed or any other instrument is relied upon as containing the arbitration agreement, the Court is required to consider at the outset, whether the document is properly stamped or not - Even when an objection in that behalf is not raised, it is the duty of the Court to consider the issue - If the Court comes to the conclusion, that the instrument is not properly stamped, it should be impounded and dealt with, in the manner specified in Section 38 of the Stamp Act, 1899 - Court cannot act upon such a document or the arbitration clause therein - However, if the deficit duty and penalty is paid in the manner set out in Section 35 or Section 40 of the Stamp Act, 1899, the document can be acted upon or admitted in evidence - Lease deed containing the arbitration clause which was required to be duly stamped, was not sufficiently stamped and though the Registrar (Judicial) had directed the respondents to pay deficit stamp duty and penalty of Rs. 1,01,56,388/- the respondents failed to do so, the High Court has erred in relying on the said lease deed – Order appointing arbitrator - Set aside. #2020 SCeJ 98