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IN THE HIGH COURT OF BOMBAY
Dr. B.P. Saraf, J.
M/s. Deepak Corporation ..... Petitioners.
Versus
Pushpa Prahlad Nanderjog .... Respondent.
Civil Revision Application No. 481 of 1989, decided on 4-3-1994.
Advocates appeared :
L.H. Rambhia, for petitioners.
Ms. S. Kalyani, for respondent.
Held, in the instant case there is no dispute that the Bombay City Civil Court falls in the category of persons specified in sub-section (1) Section 33. It has by law authority to receive evidence. So the first condition of 33 is fulfilled. As the document in question has been produced before the Court by the petitioners themselves for being acted upon, the second condition is also fulfilled. The document was sought to be admitted in evidence. The signature of the respective parties as well as the contents of the instrument were duly proved. It was only at that stage when a question was raised by the Court in regard to the adequacy of the stamp duty paid on the said instrument that time was sought by the parties and later the application for modification of the decree itself was withdrawn. The question is whether the Court before whom an inadequately stamped document had been produced for modification of the decree passed by it earlier, can be restrained from impounding the same under Section 33 of the Act by the concerned party by withdrawing the application itself with which the said document had been produced. To put it differently, in such a situation whether the Court becomes functus officio for the purpose of Section 33 of the Act. The answer, in clear terms is in the negative. A duty had been cast on the authority or the Court to impound a document under Section 33 if any such document which is inadequately stamped is produced before it to be acted upon and that duty does not come to an end on withdrawal of the document by the party liable to pay additional duty and penalty. The powers, duties and jurisdiction of the Court to pass orders on the application of the Party for modification of the decree on the basis of such application and the document produced therewith and the powers, functions and jurisdiction of the Court under Section 33 of the Stamp Act to impound the inadequately stamped document produced or coming before it are two distinct and different powers and jurisdictions. For the purpose of modification of the decree, the Court might become functus officio on withdrawal of the application but for the purpose of taking action under Section 33, it cannot become functus officio if all the requirements of Section 33 are fulfilled. If the contention of the petitioners is accepted then in every case a party may produce before the Court any document which is not adequately stamped and take a chance of same being admitted and in the event of the inadequacy of the stamp being deducted withdraw the same to avoid impounding under Section 33 and recovery of deficiency of penalty and fine by the Collector. In this connection, it may be expedient to refer to Section 35 of the Act, which provides that once a document is admitted in evidence it cannot be called in question at any stage of the same even if it is found that it is not duly stamped.
Thus it is evident that Section 35 only gives finality to- the decision in regard to the admissibility of the document in evidence. It does not operate as a bar to impounding of the same.
Order 21, Rule 2
See Bombay Stamp Act, 1958-Section 33.
2. The material facts, briefly stated, are as follows : The respondent, Pushpa Prahlad, had filed a suit against the petitioners for permanent injunction restraining them from interfering with her peaceful use and enjoyment of the suit premises and from taking any steps to dispossess her therefrom except by due process of law. The said suit, which was numbered as S.C. Suit No. 2603 of 1984, was settled between the parties and consent terms dated 20 December, 1984 were filed. By the said consent terms the petitioners (original defendants) agreed and undertook to offer to the respondent (original plaintiff) a self contained flat of 600 sq. ft. in the new building to be constructed by the petitioners on the suit property at the rate of Rs. 225/- per sq. ft. and to deliver possession of the said flat within two years from the date of commencement of the construction. The above suit was decreed by the Court on 20 December, 1984 in accordance with the said consent terms. Thereafter on 21 February, 1989, the parties signed fresh consent terms in modification and part adjustment of the above decree. An application was filed on 21 February,1989 before the Bombay City Civil Court under Order 21, Rule 2 of C.P.C. for recording the fresh consent terms and relieving the petitioners from the undertaking given by them to the Court under Clause 5 of the original consent terms and the decree passed in terms thereof. Fresh consent terms dated 21 February, 1989 were tendered to the Court along with the above application for the purpose of recording the part adjustment of the decree to the satisfaction of the plaintiff. The Court took cognizance of the said document. The plaintiff as well as the partner of the defendants who had put their signatures on the said document admitted their respective signatures and contents of the document. However, before acting upon the said document, the Court made a query to Counsel for the petitioners (original defendants) whether the document was sufficiently stamped and whether it attracted the provisions of the Indian Registration Act. Counsel for the petitioners instead of answering the query informed the Court on 24 February, 1989 that the petitioners wanted to withdraw their application dated 22 February, 1989 itself and not to press for order thereon. On the above prayer of the Counsel, the trial Court passed the following order on 24 February, 1989 :
"Advocate for the defendant states that he wants to withdraw the application i.e. 22-2-1989 and therefore, he does not press for orders.
With the above, I am not passing any orders but it will be considered whether it is necessary to impound the document by sending it to the Collector of Stamps as the parties have used it as evidence and tendered the consent terms as their agreement before this Court. In this respect separate orders will be passed. Mr. Rambhia wants to argue on this point. Adjourned to 10-3-1989 for orders at 2.45 p.m." (Emphasis supplied)
3. Later, on hearing the parties on the question whether it was necessary for the Court to forward the document to the Collector for recovery of stamp duty, penalty and registration charges, it decided the issue against the petitioners by its order dated 26 April, 1989 which is the subject matter of challenge in this revision application. The trial Court recorded a finding that the document in question
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