Rajesh Radhakrishnan Kartha v. T. A. Leelamma George

**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN & THE HONOURABLE MR.JUSTICE K. BABU THURSDAY, THE 2[ND] DAY OF SEPTEMBER 2021 / 11TH BHADRA, 1943 O.P.(RC)NO.10 OF 2021** **AGAINST THE ORDER DATED 12/01/2021 IN I.A.NO.2/2021 IN R.C.P.NO.178/2014 OF THE RENT CONTROL COURT (III ADDL. MUNSIFF), ERNAKULAM,** ## **PETITIONER:** **==> picture [52 x 125] intentionally omitted <==** **RAJESH RADHAKRISHNAN KARTHA, AGED 50 YEARS S/O.LATE DR.R.K.KARTHA, RESIDING AT 'ANJALI', JUDGES AVENUE CROSS ROAD, KALOOR, KOCHI-682 017.** **BY ADVS. DINESH R.SHENOY SRI.EBIN MATHEW SRI.P.ROHIT PREMANANDA SHENOY** ## **RESPONDENT:** **==> picture [54 x 166] intentionally omitted <==** **T.A.LEELAMMA GEORGE, AGED 70 YEARS M/S. SONY AGENCIES, DOOR NO.41/2685, (OLD BUILDING NO.41/1535), CORPORATION OF COCHIN, DR.KARTHA COMPLEX, PARAMARA ROAD, KOCHI-682 018.** **BY ADVS. SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.M.N.MANMADAN SRI.M.S.IMTHIYAZ AHAMMED SMT.P.SEENA** **THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 02.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- O.P.(RC)NO.10 OF 2021 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner-landlord filed R.C.P.No.178 of 2014 on the file of the Rent Control Court (III Addl. Munsiff), Ernakulam, against the respondent-tenant, under Section 5 of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking fixation of fair rent, in respect of the petition schedule building. The petitioner-landlord has filed this original petition under Article 227 of the Constitution of India, seeking an order to set aside the order dated 12.01.2021 of the Rent Control Court in I.A.No.2 of 2021 in R.C.P.No.178 of 2014, whereby that application filed under sub-section (2) of Section 37 of the Kerala Stamp Act, 1959, to forward the document sought to be marked as Ext.A7, produced before the Rent Control Court on 27.09.2019, along with the additional proof affidavit of the landlord, to the District Collector, Ernakulam, under subsection (2) of Section 37 of the said Act, for appropriate proceedings under Section 39 and issuance of certificate under sub-section (2) of Section 39, stands rejected for the reasons stated therein. -3- O.P.(RC)NO.10 OF 2021 2. On 18.01.2021, Registry was directed to number the case and the petitioner was directed to produce certified copy of the Ext.P5 order, within ten days. 3. On 19.01.2021, when this original petition came up for admission, this Court admitted the matter on file and issued notice to the respondent by speed post. This Court granted an interim order staying all further proceedings in R.C.P.No.178 of 2014 on the file of the Rent Control Court, Ernakulam, for a period of one month. The said interim order, which was extended from time to time, is till in force. 4. Heard the learned counsel for the petitionerlandlord and also the learned counsel for the respondenttenant. 5. The issue that arises for consideration in this original petition is as to whether any interference is warranted on the order dated 12.01.2021 of the Rent Control Court in I.A.No.2 of 2021 in R.C.P.No.178 of 2014, whereby that application filed by the petitioner under sub-section (2) of Section 37 of the Kerala Stamp Act, stands rejected for the reason stated therein. -4- O.P.(RC)NO.10 OF 2021 6. In R.C.P.No.178 of 2014 filed by the landlord, under Section 5(1) of the Act, the Rent Control Court, by the order dated 22.03.2017, fixed fair rent of the petition schedule building at the rate of Rs.40/- per sq. ft. for an extent of 160 sq. ft., as against Rs.100/- per sq. ft. for an extent of 250 sq. ft. claimed by the landlord. Feeling aggrieved, the landlord filed R.C.A.No.36 of 2017 before the Rent Control Appellate Authority (I Addl. District Judge), Ernakulam. The Appellate Authority, by the judgment dated 31.08.2018, affirmed the rate of rent fixed by the Rent Control Court at Rs.40/- per sq. ft., however, found the area of the petition schedule building as 250 sq. ft. and the tenant was held liable to pay fair rent for that extent. Feeling aggrieved, the tenant filed R.C.Rev.No.45 of 2019 and the landlord filed R.C.Rev.No.62 of 2019 before this Court. By Ext.P2 order dated 18.02.2019, this Court set aside the impugned judgment and remitted R.C.P.No.178 of 2014 to the Rent Control Court for fresh disposal, after giving opportunity to both parties to adduce further evidence, in terms of the direction contained in paragraph 6 of that judgment. -5- O.P.(RC)NO.10 OF 2021 7. After Ext.P2 order of this Court dated 18.02.2019 in R.C.Rev.Nos.45 of 2019 and 62 of 2019, the landlord produced three documents along with the additional proof affidavit filed on 27.09.2019 and requested to mark those documents as Exts.A5 to A7. The tenant opposed the marking of those documents, contending that those documents are insufficiently stamped, which are liable to be impounded under Section 33 of the Kerala Stamp Act. The Rent Control Court, by the order dated 10.10.2019 in R.C.P.No.178 of 2014, impounded only the document sought to be marked as Ext.A5. Feeling aggrieved, the tenant filed R.C.A.No.66 of 2019 before the Rent Control Appellate Authority. The Appellate Authority, in Ext.P3 judgment dated 06.11.2020, found that the documents sought to be marked as Exts.A5 and A7 are insufficiently stamped, and remanded the matter to the Rent Control Court with a direction to initiate proceedings under Section 33 of the Kerala Stamp Act, against the document sought to be marked as Ext.A7. 8. After the order of remand, the landlord filed I.A.No.2 of 2021 in R.C.P.No.178 of 2014, invoking the -6- ## O.P.(RC)NO.10 OF 2021 provisions under sub-section (2) of Section 37 of the Kerala Stamp Act, 1959, to forward the document sought to be marked as Ext.A7, produced along with the additional proof affidavit of the landlord filed on 27.09.2019, to the District Collector, Ernakulam, under sub-section (2) of Section 37 of the said Act, for appropriate proceedings under Section 39 and issuance of certificate under sub-section (2) of Section 39. By the impugned order dated 12.01.2021 of the Rent Control Court, the request made by the landlord in I.A.No.2 of 2021, to forward the document sought to be marked as Ext.A7, to the District Collector, Ernakulam, under sub-section (2) of Section 37 of the said Act, for appropriate proceedings under Section 39 and issuance of certificate under sub-section (2) of Section 39, stands rejected. 9. A reading of the impugned order would show that, a certified copy of which is placed on record along with the memo filed by the learned counsel for the petitioner-landlord dated 11.02.2021, before the Rent Control Court the learned counsel for the tenant pointed out that the tenant can adduce evidence only after the impounded document is forwarded to -7- ## O.P.(RC)NO.10 OF 2021 the District Collector and the penalty is levied. Since the tenant failed to pay penalty together with stamp duty within seven days time granted by the Rent Control Court and there is a direction from this Court in R.C.Rev.Nos.45 of 2019 and 62 of 2019 to dispose of R.C.P.No.178 of 2014 within three months, the Rent Control Court closed the evidence of the landlord and posted the matter to 15.01.2021 for tenant’s evidence. Since the landlord has not paid the penalty and the required stamp duty, the office was directed to proceed under sub-section (2) of Section 37 of the Kerala Stamp Act. 10. Section 33 of the Kerala Stamp Act deals with examination and impounding of instruments. As per subsection (1) of Section 33, every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of Police, before whom any instrument, chargeable in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. 11. Section 34 of the Act provides that, instrument not -8- ## O.P.(RC)NO.10 OF 2021 duly stamped inadmissible in evidence, etc. As per Section 34, no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped. 12. Section 37 of the Act provides how instruments impounded are dealt with. As per sub-section (1) of Section 37, when the person impounding an instrument under Section 33 has by law or consent of parties authority to receive evidence and admits such instrument in evidence or when he is a registering officer to register such instrument upon payment of a penalty as provided by Section 34 or of duty as provided by Section 36, he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector or to such person as he may appoint in this behalf. As per sub-section (2) of Section 37, in every other case, the person so impounding an instrument shall send it in original to -9- O.P.(RC)NO.10 OF 2021 the Collector. 13. Section 39 of the Act deals with Collector's power to stamp instruments impounded. Section 39 of the Act reads thus; “39. Collector's power to stamp instruments impounded.(1) When the Collector impounds any instrument under Section 33, or receives any instrument sent to him under sub-section (2) of Section 33A or sub-section (2) of Section 37, not being an instrument chargeable with a duty of twenty paise or less, he shall adopt the following procedure:- - (a) if he is of opinion that such instrument is duly stamped or is not chargeable with duty, he shall certify by endorsement thereon that it is duly stamped or that it is not so chargeable, as the case may be; - (b) if he is of opinion that such instrument is chargeable with duty and is not duly stamped he shall require the payment of the proper duty or the amount required to make up the same, together with a penalty of ten rupees; or if he thinks fit, an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof whether such amount exceeds or falls short of ten rupees: Provided that, when such instrument has been impounded only because it has been written in -10- O.P.(RC)NO.10 OF 2021 contravention of Section 13 or Section 14, the Collector may, if he thinks fit, remit the whole penalty prescribed by this section. (2) Every certificate under clause (a) of sub-section (1) shall, for the purposes of this Act, be conclusive evidence of the matters stated therein. (3) Where an instrument has been sent to the Collector under sub-section (2) of Section 37, the Collector shall, when he has dealt with it as provided by this Section, return it to the impounding officer. 14. Section 41 of the Act deals with endorsement of instruments on which duty has been paid under Sections 34, ## 39 or 40. Section 41 reads thus; “41. Endorsement of instruments on which duty has been paid under Sections 34, 39 or 40.- (1) When the duty and penalty, if any, leviable in respect of any instrument have been paid under Section 34, Section 39 or Section 40, the person admitting such instrument in evidence or the Collector, as the case may be, shall certify by endorsement thereon that the proper duty or, as the case may be, the proper duty and penalty (stating the amount of each) have been levied in respect thereof and the name and residence of the person paying them. (2) Every instrument so endorsed shall thereupon be admissible in evidence, and may be registered and acted upon and authenticated as if it had been duly stamped, and shall be delivered on his application in this behalf to the person from whose possession it came into the hands -11- O.P.(RC)NO.10 OF 2021 of the officer impounding it, or as such person may direct: Provided that-- - (a) no instrument which has been admitted in evidence upon payment of duty and a penalty under Section 34 shall be so delivered before the expiration of one month from the date of such impounding, or if the Collector has certified that its further detention is necessary and has not cancelled such certificate; - (b) nothing in this section shall affect Order XIII, Rule 9 of the First Schedule to the Code of Civil Procedure, 1908.” 15. In **Ramachandran K.P. v. District Registrar (General) and others [2019 (3) KHC 136]** a Division Bench of this Court held that, the Statutory mandate under Section 33 of the Kerala Stamp Act is that, when any instrument chargeable with duty is produced before the person having by law or consent of parties authority to receive evidence, or every person in charge of a public office, except an Officer of Police, or when any such instrument is produced or comes in performance of his functions, he shall impound the same, if it appears to him that such instrument is not duly stamped. Therefore, it is obligatory on the said officer to impound the insufficiently stamped instrument, when such an -12- O.P.(RC)NO.10 OF 2021 instrument is produced before him or it comes before him in the performance of his function. The wording “is produced or comes in performance of his functions, shall, if it appears to him that such instrument is not duly stamped” are very significant and explicitly makes the above view very clear. The expression 'shall' conveys a command and thereby makes the provision mandatory as well as obligatory. Therefore, when an insufficiently stamped instrument comes to the notice of the court/empowered person, it is incumbent upon the court/ empowered person under Section 33 of the Act to impound such instrument, irrespective of the purpose for which it was produced before the court or the party who produced it before them. Mere production or casual appearance of insufficiently stamped instrument before the court/empowered person, in the performance of functions is sufficient for invoking the power of impounding, envisaged under Section 33 of the Act. We make it clear that the prayer for receiving or admitting the instrument is not required for invoking the power to impound the same under Section 33 of the Act. The expression 'impound' only means taking possession of the document for -13- ## O.P.(RC)NO.10 OF 2021 being held in custody only, in accordance with law. Therefore, it is obligatory on the court/empowered person to take possession of the insufficiently stamped instrument. Section 33 empowers the court/empowered person to take possession of the insufficiently stamped instrument only, and the court/ empowered person has no power to impose penalty under Section 33, when the document is produced before the court/ empowered person and is not sought to be admitted in evidence. Accordingly, it can be safely concluded that the composite order, impounding the instrument and imposing penalty, when the insufficiently stamped instrument is produced before the court/empowered person but is not sought to be admitted in evidence, is legally unsustainable as the court/empowered person has no power to impose penalty under Section 33 of the Act, when the instrument is not sought to be admitted in evidence. It further follows that, the order impounding the insufficiently stamped instrument alone is legally sustainable and the court is bound to pass such an order impounding the instrument only, when the instrument is not sought to be admitted in evidence. It is well discernible on -14- O.P.(RC)NO.10 OF 2021 a meticulous reading of Sections 33, 34 and 37 of the Act that the power to impound and impose penalty are different and distinct and conferred to the court/empowered person on different circumstances and context. It is well discernible from Section 34 of the Act that no instrument chargeable with duty shall be admitted in evidence or shall be acted upon unless the instrument is duly stamped and such insufficiently stamped instrument be admitted in evidence on payment of deficient portion and penalty at 10 times of such portion. Thus, penalty can be imposed only if the instrument is sought to be admitted in evidence and no penalty can be imposed if the document is not tendered to be admitted in evidence. Sub-section (1) and (2) of Section 37 of the Act prescribes as to how the impounded instrument shall be dealt with. The procedure to be adopted is prescribed under sub-section (1) and (2) of Section 37 of the Act. As per sub-section (1) of Section 37, if the instrument is admitted in evidence and penalty is imposed, the Registering Officer shall, under Section 34, send an authenticated copy of such instrument to the District Collector, together with the certificate in writing, -15- O.P.(RC)NO.10 OF 2021 stating the amount of duty levied and shall send such amount to the District Collector or to such person appointed on that behalf. As per sub-section (2) of Section 37, in every other case, the person so impounding an instrument shall send it in original to the District Collector. It follows that the instrument, which was impounded, but not admitted in evidence, would fall under sub-section (2) of Section 37 of the Act. In other words, the instrument, which was impounded under Section 33, but not admitted in evidence, shall be sent to the District Collector, as prescribed under sub-section (2) of Section 37, for imposing penalty under clause (b) of sub-section (1) of Section 39 of the Act. 16. In the instant case, the document produced along with the additional proof affidavit of the landlord filed on 27.09.2019, which was sought to be marked as Ext.A7, is not admitted in evidence. As per the procedure prescribed under sub-section (2) of Section 37 of the Act, the said instrument, which was impounded under Section 33, but not admitted in evidence, shall be sent to the District Collector, for imposing penalty under clause (b) of sub-section (1) of Section 39 of -16- ## O.P.(RC)NO.10 OF 2021 the Act. Therefore, the procedure adopted by the Rent Control Court while passing the impugned order in I.A.No.2 of 2021 in R.C.P.No.178 of 2014 is contrary to that prescribed under subsection (2) of Section 37 of the Act. In such circumstances, the Rent Control Court has to reconsider I.A.No.2 of 2021, strictly in accordance with the statutory provisions noticed hereinbefore and also the law laid down in the decision referred to supra. 17. Another reason stated in the impugned order, in order to decline the relief sought for in I.A.No.2 of 2021 in R.C.P.No.178 of 2014, to forward the document in question to the District Collector, under sub-section (2) of Section 37 of the Act, is the time limit fixed by this Court in R.C.Rev.Nos.45 of 2019 and 62 of 2019 to dispose of R.C.P.No.178 of 2014 within three months. The time limit originally fixed in Ext.P2 order dated 18.02.2019 in R.C.Rev.Nos.45 of 2019 and 62 of 2019 to dispose of R.C.P.No.178 of 2014 was extended on various occasions for proper consideration of the interlocutory applications subsequently filed for deputing Advocate Commission to submit a report regarding the area of the -17- O.P.(RC)NO.10 OF 2021 petition schedule building; on account of the order of stay granted by the Rent Control Appellate Authority in R.C.A.No.66 of 2019; the initiation of proceedings under Section 33 of the Kerala Stamp Act; etc. On 16.03.2021, in R.C.Rev.Nos.45 of 2019 and 62 of 2019, a Division Bench of this Court granted extension of time for three months, as last chance, for final disposal of R.C.P.No.178 of 2014. However, in this original petition filed under Article 227 of the Constitution of India, another Division Bench granted an interim order staying all further proceedings in R.C.P.No.178 of 2014, which is still in force. In view of the order of stay granted in this original petition, the Rent Control Court has sought for further extension of the time limit fixed in R.C.Rev.Nos.45 of 2019 and 62 of 2019. Today, extension of time for a period of four months is granted for final disposal of R.C.P.No.178 of 2014, vide a separate order in R.C.Rev.Nos.45 of 2019 and 62 of 2019. In the result, this original petition is allowed by setting aside the order of the Rent Control Court dated 12.01.2021 in I.A.No.2 of 2021 in R.C.P.No.178 of 2014 and directing the -18- ## O.P.(RC)NO.10 OF 2021 Rent Control Court to reconsider I.A.No.2 of 2021, strictly in accordance with the statutory provisions noticed hereinbefore and also the law laid down in the decision referred to supra, as expeditiously as possible, at any rate, within one month from the date of receipt of a certified copy of this judgment. Thereafter, the Rent Control Court shall finally dispose of R.C.P.No.178 of 2014, as expeditiously as possible, at any rate, within a further period of three months. Both parties shall appear before the Rent Control Court, Ernakulam, on **10.09.2021** . Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **K. BABU, JUDGE** AV/2/9 -19- ## O.P.(RC)NO.10 OF 2021 ## **APPENDIX** |**APPENDIX**|**APPENDIX**| |---|---| |**PETITIONER EXHIBITS**|| |**EXHIBIT P1**|**TRUE PHOTOCOPY OF RCP NO.178/2014 RENT**<br>**CONTROL COURT, ERNAKULAM.**| |**EXHIBIT P2**|**TRUE PHOTOCOPY OF THE JUDGMENT DATED**<br>**18.02.2019 IN RCR NO.45/2019, HIGH COURT**<br>**OF KERALA.**| |**EXHIBIT P3**|**TRUE PHOTOCOPY OF THE JUDGMENT DATED**<br>**06.11.2020 IN RCA NO.66/2019 RENT CONTROL**<br>**APPELLATE AUTHORITY, ERNAKULAM.**| |**EXHIBIT P4**|**TRUE PHOTOCOPY OF IA NO.2/2021 IN RCP**<br>**NO.178/2014, RENT CONTROL COURT,**<br>**ERNAKULAM.**| |**EXHIBIT P5**|**TRUE PHOTOCOPY OF THE PRINTOUT OF ORDER**<br>**DATED 12.01.2021 IN RCP NO.178/2014, RENT**<br>**CONTROL COURT, ERNAKULAM.**|