The main legal point established in the judgment is that the Court's role in collecting stamp duty and penalty depends on whether the party wants the document admitted in evidence or wants the Court to send it to the Collector, as provided under Section 38(2) of the Indian Stamp Act.

RAMACHANDRA RAJU, J.

( 1 ) THE plaintiff in O. S. No. 13/68 on the file of the Court of the Subordinate Judge, Adoni is the petitioner. In the suit, he filed a document which was found to be a lease deed requiring payment of stamp duty and registration. The Court below directed the petitioner to pay the required stamp duty and penalty. But instead of complying with that order, the petitioner filed an application under Section 38 ( of the Indian Stamp Act to send the same to the Collector so that he may determine and collect the proper duty and penalty payable on the document. This, the lower Court refused by holding that the document cannot now be sent to the Collector under Section 38 (2) of the Stamp Act as the Civil Court is the competent authority to decide as to the amount of stamp duty and penalty to be collected. It is true as provided under Section 35 of the Stamp Act no instrument chargeable with duty shall be admitted in evidence for any purpose unless such instrument is duly stamped. It is also provided in Section 35 of the Act that except with regard to the instruments mentioned therein, the other documents can be admitted in evidence on payment of duty and penalty as mentioned therein. Section 33 provides for impounding of instruments required to be stamped and not duly stamped. It is provided under Section 38 (1) that when a person impounding an instrument has authority to receive evidence and admits such instrument in evidence upon payment of penalty as provided by Section 35, then 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. It is further provided in Section 38 (2) that in every other case the person impounding the instrument shall send it in original to the Collector who shall deal with it as provided under Section 40. A reading of Section 38 shows that if the party who filed the document wants it to be admitted in evidence, then only the Court shall collect the stamp duty and penalty and then admit the instrument in evidence. But if the party instead of requiring the document to be admitted in evidence merely wants the Court to send it to the Collector to be dealt with under Section 40, I do not think the Court can have any option but to send it to the Collector as provided under Section 38 (2 ). The Court cannot compel a party to pay the stamp duty and penalty and have it admitted in evidence. It is for the party to have the document admitted in evidence by paying stamp duty and penalty or leave the Court to take action as provided under Section 38 (2 ). It is clear that the intention of the petitioner is not to have the document admitted in evidence by paying stamp duty and penalty and therefore he requested the court either to send the document to the Collector as provided under Section 38 (2) or deliver it to him so that he himself can place it before the Collector for taking action under section 40. The latter course cannot certainly be adopted because the party may fail to put up the document before the Collector for collecting the proper stamp duty and penalty. Under these circumstances the Civil Revision Petition is allowed and the lower Court is directed to send the instrument which is impounded to the Collector for taking the necessary action as provided under Section 40. No order as to costs.

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