Bombay HC Says Photocopy Of A Document Cannot Be Treated As An “Instrument”

The Bombay High Court on Monday has held that photo copy of a document cannot be treated as an “instrument” under Section 2(l) of the Maharashtra Stamps Act, 1958 and no order for impounding such document can be passed.

The petitioner herein filed a writ petition challenging judgment and order passed by the District Judgewhereby appeal filed by the original defendant-petitionerin one writ petition was allowed and an agreement of tenancy between original plaintiff-petitioner in other writ petition and defendant-petitioner was impounded to pay requisite stamp duty and penalty thereon and thereafter, it was directed that the said document be exhibited for collateral purpose. It was significant that the said document was not original agreement but, a photo copy thereof.

The petitioner’s case in brief is that he had filed Regular Civil Suit before the Small Causes Court at Nagpur, against the defendants seeking eviction and possession of the suit property. The said plaintiff had claimed in the suit that the suit property was an open plot when it was given on rent to the defendant. Although it is not specified as to whether the suit property was given on rent by an oral agreement, in the written statement the defendant did not dispute the fact that an open plot was given on rent. It was claimed by the defendant that a temporary structure was constructed in the suit property.

The evidence of the plaintiff was completed and when the cross-examination of the defendant was being undertaken, the aforesaid document claimed to be a tenancy agreement was tendered, which was denied by the plaintiff. It was claimed that the said document was a photo copy of the tenancy agreement and further that the original was with the plaintiff. The notice to produce the document was issued, but the plaintiff had denied the very existence of the same. When an attempt was made for document to be exhibited, the plaintiff objected to the same by disputing the document and denying its very existence. It was further asserted on behalf of the plaintiff that the said document was not duly stamped and that it was not a registered document. The Small Causes Court accepted the objections raised on behalf of the plaintiff and rejected a request of defendant for exhibiting the said document.

The defendant moved an application for exhibiting document under Section 49 of the Registration Act, for collateral purpose before the Small Causes Court. This application was marked as Exh.165. The plaintiff opposed the said application, later the Small Causes Court rejected the application, holding that the defendant failed to state the collateral purpose for which document was sought to be exhibited and on the basis of vague pleadings, order under Section 49 of the Registration Act could not be passed.

Aggrieved by the said order, defendant filed Civil Appeal, before the Court below. By the impugned judgment and order, the Court below partly allowed the appeal and held that the agreement of tenancy is impounded to the payment of requisite stamp duty and penalty thereon andafter payment of the requisite stamp duty and penalty on the said document it be executed for the collateral purpose, also the appellant-defendant shall take necessary steps for payment of stamp duty and penalty thereon as per the provisions of law on or before next date.

Aggrieved by the said order of the lower court, both the plaintiff as well as defendant had filed the writ petitions in Bombay High Court. The plaintiff i.e. the petitioner in one of the Writ Petition, had challenged impugned order on the ground that the document sought to be exhibited was only a photo copy and not the original and, therefore, no order for impounding such a document could have been passed on proper reading of the relevant provisions of the Maharashtra Stamps Act, 1958.

“Section 2(l) of the Maharashtra Stamps Act, defines “instrument” and it reads as follows : “instrument” includes every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded, but does not include a bill of exchange, cheque, promissory note, bill of lading, letter of credit, policy of insurance, transfer of share, debenture, proxy and receipt;”

Learned counsel appearing for defendant claimed that when the original document was in possession of the plaintiff and he was deliberately suppressing the same, the photo copy of the same ought to have been permitted to be exhibited by the Court below, without insistence of impounding the same for payment of stamp duty and penalty thereon, in the interest of justice.

The Case was heard by single judge bench of Justice Manish Pitale who place reliance on the case of Gayabai Hemlal Jadhav Vs. Hiraman s/o Rama Chavan, 2011 (4) Mh.L.J. 798, which held that a photo copy could not be said to be “instrument” as defined under Section 2(l) of the Maharashtra Stamps Act, 1958 and, therefore, Sections 32(A) and 33 of the said Act, could not apply to the document in question in the present case.

The High Court while allowing the writ petition held that the position of law appears to be absolutely clear to the effect that photo copy of a document cannot be treated as an “instrument” under Section 2(l) of the Maharashtra Stamps Act, 1958 and no order for impounding such document can be passed. Thus, the Court below erred in passing the impugned order directing that the document in question i.e. photo copy of alleged agreement dated 26/10/1999, was to be impounded for payment of requisite stamp duty and penalty thereon. As a result, the consequent direction for exhibiting the document for collateral purpose after payment of requisite stamp duty and penalty can also not be sustained.

Therefore, the Bombay High court held that the impugned judgment and order passed by the Court below cannot be sustained and is quashed and set aside.

-India Legal Bureau