Wednesday, October 15, 2025
Latest:
delhihighcourt

VIJAY KUMAR SAINI  Vs SUSHEELA DEVI SAINI & ORS. -Judgment by Delhi High Court

Information

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 26th April, 2022
+ CS(OS) 615/2019 & IA No.16558/2019
VIJAY KUMAR SAINI ….. Plaintiff
Through: Ms. Jaspreet Sareen with Mr. Chirag Kher, Advocates for applicant/Ajay Saini.
versus
SUSHEELA DEVI SAINI & ORS. ….. Defendants
Through: Mr. Shekhar Priti Jha, Advocate.

CORAM:
HON’BLE MR. JUSTICE AMIT BANSAL
AMIT BANSAL, J. (Oral)
IA No.1662/2021(u/O.XXII R.3 of CPC)
1. The present application has been filed on behalf of applicants being the legal representatives of the deceased plaintiff for substitution as the legal representatives of the plaintiff. It is stated that the plaintiff passed away on 3rd November, 2020 in the United States of America. The applicants no.1 and 2, Mr. Ajay Saini and Ms. Tarang V. Pene, are the sole surviving legal heirs of the deceased plaintiff, being the son and daughter respectively of the deceased plaintiff. The wife of the deceased plaintiff had predeceased the plaintiff on 16th April, 2011. Accordingly, substitution of the names of the applicants as the legal representatives of the plaintiff in place of the deceased plaintiff is sought.
2. In view of the fact that the applicants are not based in India, a Power of Attorney dated 23rd January, 2021 was executed by each of the applicants in favour of one Mr. Ram Prakash Saini to represent their interest in the present suit. The present application is supported by the affidavit filed by the aforesaid holder of the Powers of Attorney on behalf of the applicants. The originals of the aforesaid Powers of Attorney have been filed as a part of the record of the suit.
3. The counsel for the applicants submits that the Powers of Attorney were executed and notarized in the United States of America on 23rd January, 2021. The said documents were apostilled in the United States on 25th February, 2021, and within the statutorily prescribed period of three months from the date of receipt of the said documents, they were duly stamped in India on 12th March, 2021 at the prescribed rate of stamp duty in terms of Article 48(c) of the Indian Stamp Act, 1899, as applicable to Delhi.
4. The counsel appearing on behalf of the non-applicant/defendant no.1 does not dispute that the applicants are the legal representatives of the deceased plaintiff. However, it is submitted that the Powers of Attorney executed by the applicants in favour of Mr. Ram Prakash Saini have to be placed before the Collector of the Stamps for adjudication of the proper amount of stamp duty payable on the said document. Reliance is placed on Sections 33 and 35 of the Indian Stamp Act.
5. I have heard the counsel for the parties.
6. Reference may be made to the relevant provisions of the Indian Stamp Act, which are set out hereinafter-
�31. Adjudication as to proper stamp.� (1) When any instrument, whether executed or not and whether previously stamped or not, is brought to the Collector, and the person bringing it applies to have the opinion of that officer as to the duty (if any) with which it is chargeable, and pays a fee of such amount (not exceeding five rupees and not less than [fifty naye paise] as the Collector may in each case direct, the Collector shall determine the duty (if any) with which, in his judgment the instrument is chargeable.
xxxx xxxx xxxx
33. Examination and impounding of instruments.� (1) 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.
xxxx xxxx xxxx
35. Instruments not duly stamped inadmissible in evidence, etc.� 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��
7. The position that emerges from a reading of the aforesaid provisions of the Indian Stamp Act is as follows:
(i) The Collector has to adjudicate as to the proper stamp duty payable, when an instrument is brought to the Collector and an application is filed to have the opinion of the Collector in respect of the amount of stamp duty payable on that instrument.
(ii) If it appears to an authority, before whom the said instrument is produced, that the instrument is not duly stamped, the said authority can impound the same.
(iii) For the said purpose, the authority concerned has to ascertain whether an adequate amount of stamp duty, as prescribed in law, has been paid on instrument or not.
(iv) No instrument, which is chargeable with stamp duty, shall be admitted in evidence or shall be acted upon, unless the said instrument is duly stamped.
8. The counsel for the applicants submits that the Powers of Attorney have been duly executed on stamp papers of Rs.100/- each, which is more than the prescribed stamp duty of Rs.50/- payable on a Power of Attorney in terms of Article 48(c) of the Indian Stamp Act, as applicable to Delhi.
9. It is not the case of the defendant no.1 that the Powers of Attorney in question in the present suit have not been adequately stamped. Nor has the Joint Registrar, before whom the present suit was listed, come to the conclusion that an instrument has not been adequately stamped. That being the position, there is no requirement for the instrument to be referred to the Collector of Stamps for determination of stamp duty. It is only in case the authority, before whom the document is placed, comes to the conclusion that the document was required to be stamped and has not been adequately stamped, that the authority may refer the document to the Collector for adjudication. This Court does not find any merit in the submission of the defendant no.1 that every document that is executed outside India and which is later on brought into India for acts to be performed in India has to be mandatorily referred to Collector of Stamps for adjudication of stamp duty. In the present times, where the Court is dealing with so many cases where one of the parties to the suit is situated outside India, it cannot be the intent of law that every document that is executed outside India has to be referred to Collector of Stamps for adjudication of stamp duty payable thereon.
10. The counsel for the applicants has correctly placed reliance on the judgment of this Court in J.S. Bhalla Vs. G.J. Bhawnani, 1982 SCC OnLine Del 281. It has been observed in the aforesaid judgment that only if a person wants to get a certificate from the Collector in respect of any document executed outside India, does he have to send it to the Collector within three months of its receipt in India. Further in terms of Section 33 of the Indian Stamp Act, the authority dealing with the document is entitled to impound the document only if the same is not duly stamped. The judgment in J.S. Bhalla (supra) has also been approved by the Supreme Court in Malaysian Airlines Systems BHD Vs. Stic Travels (P) Ltd., (2001) 1 SCC 451, where, in the context of impounding of a power of attorney executed outside India and presented in India for use in proceedings, the Supreme Court reiterated that if a document is produced as evidence within three months of execution, stamp duty can be collected under Section 18 of the Indian Stamp Act, read with Section 32 of the said Act, without impounding the document under Section 33 of the said Act. It is pertinent to note that the Powers of Attorney in the present case have been stamped within three months of their execution and their receipt in India. Accordingly, there is no merit in the objection of the defendant no.1 that the Powers of Attorney, executed by the applicants in favour of Mr. Ram Prakash Saini to represent their interest in the present suit, have to be placed before the Collector of the Stamps for adjudication of the proper amount of stamp duty payable thereon.
11. The application is allowed.
CS(OS) 615/2019 & IA No.16558/2019 (u/O.XXXIX R.1&2 of CPC)
12. Amended memo of parties be filed within ten days, wherein the legal representatives of the deceased plaintiff are reflected as such.
13. Liberty is given to the legal representatives of the deceased plaintiff to file replication within four weeks from today.
14. List before the Joint Registrar for further proceedings on 8th July, 2022.

AMIT BANSAL, J
APRIL 26, 2022
ak

CS (OS) No.615/2019 Page 6 of 6