The court clarified that an unstamped document marked as evidence must be impounded and assessed for stamp duty prior to its admissibility in court.

ORDER :

LALITHA KANNEGANTI, J.

Aggrieved by the order passed in I.A.No.V in O.S.No.4641/2016 dated 29.11.2018 passed by the LXIII Additional City Civil & Sessions Judge (CCH-64), Bengaluru City, the petitioner/defendant is before this Court.

2. The respondent/plaintiff had filed the suit against the petitioner/defendant seeking the relief of recovery of money. I.A.No.V is filed by the defendant under Section 151 of CPC read with Sections 33 and 35 of KARNATAKA STAMP ACT , 1957, for impounding the Unstamped Memorandum of Understanding produced by the plaintiff as Ex.P4. It is stated that during the course of marking of the documents, the trial Court without considering the objection raised by the defendant has marked the Unstamped Memorandum of Understanding as Ex.P.4. It is also stated that even though the Memorandum of Understanding is only for the purpose of understanding between the parties, the amount mentioned in the said document clearly goes to show that there is a contact between the parties with regard to offer and acceptance of the immovable property. It is stated that the part consideration of sum of Rs.50,00,000/- has already been paid to the owner of the property and therefore, the document to be admissible in evidence has to be stamped under the provision of the KARNATAKA STAMP ACT , 1957.

3. The trial Court had dismissed the said application and while dismissing the application, the trial Court had observed that the document Ex.P4 is marked by the Court in the presence of the counsel appearing for the defendant and at the time of marking of the said document, absolutely there was no objection from the other side, but very strangely the defendant in his affidavit filed in support of the application has stated that the trial Court had not considered the objection in respect of marking of the unstamped Memorandum of Understanding as Ex.P4. The trial Court observed that while marking the said document, there was no objection by the other side. Further, considering Section 35 of the KARNATAKA STAMP ACT , the Court had observed that once an instrument is marked and admitted in evidence that shall not be questioned at any stage of the said suit or proceedings on the ground that the instrument has not been duly stamped, except as provided under Section 58 of the Act. There is a finding that the present suit of the plaintiff is for recovery of money from the defendant, but not based on Ex.P4. Ex.P4 is produced by the plaintiff to show the conduct of the defendant as per the say of the plaintiff. The transfer of the amount mentioned in Ex.P4 is in respect of the transaction between the defendant and one Smt.Shobha Ratnam and Smt.Rupa Narendran in respect of an agreement of sale dated 13.06.2014, entered into between them and that is not the subject matter of this suit. Therefore, I.A.No.V cannot be allowed and accordingly dismissed the same.

4. Learned counsel appearing for the petitioner/ defendant submits that when the defendant raised an objection with regard to the unregistered document i.e., Memorandum of Understanding, still the same was marked as Ex.P4. It is submitted that the trial Court has not followed the procedure while marking the unregistered/unstamped document as contemplated under the Act. Learned counsel for the petitioner had relied on the judgment of Co-ordinate Bench of this Court, in case of Smt. Savithramma R.C. Vs. M/s. Vijaya Bank and Another , ILR 2015 Kar.1984 relied on Para No.6, 7 and 8 which reads as follows:

“6. From the aforesaid statutory provisions and the decisions, it is clear that a duty is cast upon every Judge to examine every document, which is produced or comes before him in the performance of his functions. On such examination, if it appears to the Judge that such instrument is not duly stamped, an obligation is cast upon him to impound the same. This duty is to be performed by the Judge irrespective of the fact whether any objection to its marking is raised or not. Hence, there