Section 36 of the Indian Stamp Act categorically prohibits a court from questioning the admission of an instrument in evidence on the ground of insufficient stamp duty, except as provided in Section 61. The duty is cast upon the authorities, including the courts, to impound a document with insufficient stamp duty as per the West Bengal Amendment Act.

JUDGMENT

S.B. Sinha, J.

Leave granted.

Interpretation of Section 36 of the Indian Stamp Act, 1899 ('the Act'), as amended in the State of West Bengal by Indian Stamp (West Bengal Amendment) Act, 1990 (hereinafter referred to as 'the West Bengal Act'), falls for consideration in this appeal which arises out of a judgment and order dated 5th May, 2006, whereby and whereunder the Review Application filed by Appellant herein from and order dated 13.4.2005 passed by the learned 2nd Civil Judge (Senior Division), Barasat was dismissed. The basic fact of the matter is not in dispute. The parties hereto entered into an agreement to develop the suit property. Disputes and differences having arisen between them in regard to the purported termination of the said agreement by Appellant, a Suit was filed by Respondent herein for declaration and permanent injunction in the court of the Munsif, 3rd Court, Sealdah on 10.1.1997.

An interim order of injunction was passed in the suit, which although was affirmed by the Appellate Court, but has been set aside by the Revisional Court. Respondent thereafter filed a suit for specific performance of the contract on 8.1.1999, inter alia, which was marked as Title Suit No.4 of 1999, praying for the following reliefs :"i)A decree to be passed for specific performance of Contract Agreement dated 16th day of January, 1995 directing thereby the defendant to perform his part of the contract by way of rendering the exclusive right to the plaintiff to have free access into the suit property for raising rest of the construction in respect of second and third floors of the suit premises and to execute a registered deed or deeds of conveyance in respect of flats to be completed in the second floor and third floor of the suit premises in favour of the plaintiff or in favour of his nominees on receipt of balance consideration thereof and commanding the defendant to extend all sorts of cooperation with the plaintiff as would be required for construction of the plaintiff's allocation in respect of second and third floor of the suit premises.

ii)A Decree for Permanent Injunction restraining the defendant and his authorised non and agents from interfering with the act of construction of the plaintiff in respect of his own allocation relating to second and third floor of the suit premises and/or from parting with the possession of the super built structures of the second floor and two garages in the ground floor or any part thereof in favour of any third party till final disposal of the suit."Respondent herein filed the aforementioned Development Agreement dated 16.1.995. The same was exhibited without any objection on the part of Appellant herein on 17.02.2003. The parties also adduced their respective evidences. 16.2.2005 was the date fixed for argument in the suit on which date Appellant filed two applications :

(1) for recalling the order dated 17.2.2003; and

(2) for sending the said documents to the Collector for impounding thereof in terms of Section 38 of the Indian Stamp Act.

By an order dated 13.4.2005, the learned Trial Judge rejected both the applications. A Revisional Application filed by Appellant before the High Court has been dismissed by reason of the impugned judgment dated 28.2.2006. A review petition was filed by Appellant was also dismissed by the High Court by an order dated 5.5.2006.

Mr. Ranjan Mukherjee, learned counsel appearing for Appellant, inter alia, submitted that the learned courts below committed a manifest error in relying on Section 36 of the Indian Stamp Act, which cannot be said to have any application in the instant case, in view of the amendment made by the State of West Bengal therein, which came into force on 31.1.1994. It was further submitted that in the decision of this Court in Javer Chand & Ors. vs. Pukhraj Surana [AIR 1961 SC 1655], whereupon the courts below relied upon, it had no occasion to consider the purport and object of the State Act, viz, that the sta