Petitioners are before this Court aggrieved by the order of the Trial Court whereby their application filed under Section 37 read with 34 of the Karnataka Stamp Act, 1957 (‘Act’ for brevity) and Section 151 of CPC, for collecting the duty and penalty on an agreement of sale dated 2.4.2002 is rejected on the ground that unregistered agreement of sale is not admissible in evidence, hence, the question of collecting the stamp duty and penalty does not arise at all.

2. Sri. Apparao Sugoor, learned Counsel for the petitioners (plaintiffs) submits that the original plaintiff filed a suit for specific performance of the contract and for perpetual injunction against the defendant/respondent herein and at the same time, the respondent has also filed a suit for declaration and injunction against the plaintiff in O.S.No.77/2011. Both suits are clubbed and are tried together. The plaintiff since was well acquainted with the defendant entered into contract to purchase the suit property for a consideration of Rs.9,76,000/- from him and after receiving the entire consideration, defendant executed a receipt for a full consideration amount in his own writing and delivered the physical possession of the property on 22.2.2006 with a condition that the plaintiff will get the registered sale deed executed at his convenience. Now on the death of the original plaintiff, his legal heirs are prosecuting the case. After completion of the pleadings, during the course of evidence of the plaintiff, the plaintiff marked certain documents and with regard to the agreement of sale, the Trial Court, though there was no resistance from other side, vide order dated 15.10.2014, held that the agreement of sale dated 2.4.2002 is not admissible in evidence by virtue of Section 17(1-A) of the Registration Act. The petitioners now intend to pay stamp duty and penalty and there is no prohibition under Section 17 or Section 49 of the Registration Act to collect the requisite stamp duty. The case is still at the stage of recording the evidence; at this stage, the court below could not have curbed the right of the plaintiff without there being any application from the defendant. Hence, the Order under challenge at Annexure-A is liable to be quashed.

3. In reply, Sri. Ravi B. Patil, learned Counsel for the respondent submits that the suit for specific performance of the contract since based on unregistered deed of agreement, is hit by Section 17(1-A) of the Registration Act, 1908 and the same is not admissible in evidence in the light of the judgments of this Court in 2017(1) KLR 45 in the case of Gurushantappa Vs. Subhash; W.P. No. 203424/2014 in the case of Meenabai Vs. Vijayakumar and the judgment of the Apex Court in 2016 (2) KLR 551 in the case of Subraya M.N. Vs. Vittal M.N. & others. Under Section 34 of the Karnataka Stamp Act 1957, any instrument unless duly stamped will not be received in evidence. But the unregistered deed of agreement of sale since already held to be inadmissible in evidence by the Court by its order dated 11.10.2014 and the said order since not challenged by the plaintiff, rightly court below rejected to subject the said document for impounding under Section 34 of the Karnataka Stamp Act.

4. In the light of the above rival submissions, a short question that needs to be resolved is:

“Whether the unregistered deed of agreement on which the entire suit is founded can be prevented from payment of due stamp duty and penalty?”

5. As pointed out at the Bar, the stage of the case is still at recording the evidence of the plaintiffs and the document, which is now sought to be subjected to payment of stamp duty and penalty, is held inadmissible in evidence by the order of the Court and the said order is not challenged till now.

6. Question is, could a document, which is not otherwise qualified to be received in evidence, be legalized by paying required duty and penalty? As such, Section 34 of the Act mandates that unless an instrument is duly stamped ca