M/S. Z. ENGINEERS CONSTRUCTION PVT. LTD. & ANR versus BIPIN BIHARI BEHERA & ORS.

Citation: [2020] 1 S.C.R. 644 · Decided: 14-02-2020 · Supreme Court of India · Bench: S. ABDUL NAZEER · Disposal: Disposed off
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Judgment (excerpt)

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SUPREME COURT REPORTS
[2020] 1 S.C.R.
M/S. Z. ENGINEERS CONSTRUCTION PVT. LTD. & ANR.
v.
BIPIN BIHARI BEHERA & ORS.
(Civil Appeal No. 1627 of 2020)
FEBRUARY 14, 2020
[S. ABDUL NAZEER AND HEMANT GUPTA, JJ.]
Stamp Act, 1899 (as amended by Orissa Act no.1 of 2003
w.e.f 20.01.2003): s.35; Art.23 – Code of Civil Procedure, 1908 –
Or.XIII r.8 – Impounding of a document (power of attorney) for
insufficient stamp duty – Suit for partition filed by plaintiffs-
respondents through power of attorney holders (PW-1) – During
cross-examination of PW-1, appellants filed application under
Or.XIII r.8 to impound the power of attorneys (POAs) on the ground
that such POAs ought to be treated as conveyance within the meaning
of Art.23 of Stamp Act as amended in Orissa State and in view of
that they were insufficiently stamped and, therefore, in terms of s.35
of Stamp Act, the POAs are liable to be impounded and cannot be
admitted in evidence unless an appropriate stamp duty is paid –
Trial court and High Court dismissed the application observing that
since it is a registered document, therefore, it is properly stamped –
Held: The question whether possession was transferred at the time
or after execution of such POA is a question of fact which is required
to be decided by the Court at the time of final decision, after evidence
is led by the parties and not merely on the basis of recitals in POA –
Such process would be fair and reasonable keeping in view the
provisions of Orissa Act –  In the facts of the instant case, the
objection relating to deficiency in stamp duty on POA which the
appellants claimed to be conveyance, would depend upon the finding
regarding delivery of possession in terms of POA – 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 – Therefore, order passed by trial
court and High Court set aside – Matter remitted to the trial court
to decide the objection of admissibility of the document on account
   [2020] 1 S.C.R. 644
644
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of being insufficiently stamped – Indian Stamp Orissa Amendment
Act, 2003.
Disposing of the appeal and remitting the matter to trial
court, the Court
HELD: The trial court as well as the High Court returned
the findings on the bare reading of the power of attorney and
observed that since it is a registered document, therefore, it is
properly stamped. But the question as to whether in terms of the
explanation inserted by the Orissa Act, such power of attorney is
liable to be stamped as conveyance, on account of the delivery of
possession at the time of execution of power of attorney or
thereafter was not examined. The question whether possession
was transferred at the time or after execution of such power of
attorney is a question of fact which is required to be decided by
the Court at the time of final decision being adjudicated, after
evidence is led by the parties and not merely on the basis of
recitals in the power of attorney. Such process would be fair and
reasonable keeping in view the provisions of Orissa Act.
[Paras 11, 12][650-E-G]
R.V.E. 
Venkatachala 
Gounder 
v. 
Arulmigu
Viswesaraswami & V.P. Temple & Anr. (2003) 8 SCC
752 : [2003] 4 Suppl. SCR 450 – held inapplicable.
Ram Rattan (Dead) by LRs. v. Bajrang Lal & Ors. (1978)
3 SCC 236 : [1978] 3 SCR 963; Omprakash v.
Laxminarayan & Ors. (2014) 1 SCC 618 : [2013] 9
SCR 923; Bipin Shantilal Panchal v. State of Gujarat
& Anr. (2001) 3 SCC 1 : [2001] 2 SCR 29 – referred
to.
Case Law Reference
[1978] 3 SCR 963
referred to
Para 7
[2013] 9 SCR 923
referred to
Para 8
[2003] 4 Suppl. SCR 450
held inapplicable
Para 9
[2001] 2 SCR 29
referred to
Para 10
M/S. Z. ENGINEERS CONSTRUCTION PVT. LTD. & ANR.v.
BIPIN BIHARI BEHERA & ORS.
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SUPREME COURT REPORTS
[2020] 1 S.C.R.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1627
of 2020.
From the Judgment and Order dated 24.01.2019 of the High Court
of  Orissa at Cuttack in C.M.P. No. 1534 of 2018.
Shyam Divan, Sr. Adv., Anirudh Sanganeria, Satya Smruti
Mohanty, Ms. Shruti Agarwal, Advs. for the Appellants.
Vikas Dhawan, S.P. Das, Lakshay, Kaustubh Shukla, Advs. for
the Respondents.
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
1. Leave granted.
2. The challenge in the present appeal is t
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