The court clarified the jurisdiction of the court in requiring payment of deficit stamp duty and penalty, and the process for depositing the penalty amount and seeking a refund from the Collector.

JUDGMENT

M S Sonak, J. - Heard Mr. Anthony J. D'Silva, learned Counsel for the petitioner and Mr. M. B. D'Costa, learned Senior Advocate with Ms. Karishma Betquecar, learned Counsel for the respondent No. 1.

2. Mr. D'Silva points out that the remaining respondents have been duly served. On 29.07.2019 this Court had made clear that this petition will be taken up for final disposal at the state of admission.

3. Accordingly, Rule. Rule is made returnable forthwith in view of the consent and request of the learned Counsel for the parties as also the order dated 29.07.2019.

4. The challenge in this petition is to the order dated 06.07.2019 made by the Adhoc Senior Civil Judge 'B' Court at Panaji requiring the petitioner-plaintiff to pay deficit stamp duty of Rs. 15,000/- on the agreement dated 27.12.2010 and to pay penalty of ten times of such duty.

5. Mr. D'Silva, learned Counsel for the petitioner submits that in this case the learned Trial Judge has failed to adopt the procedure prescribed in such matters by the Hon'ble Apex Court in the case of Chilakuri Gangulappa v/s. Revenue Divisional Officer, Madanapalle & Anr, (2001) AIR SC 1321. He submits that the trial court had no jurisdiction to make the order which it had made and the matter ought to have been referred to the Collector for deciding on the issue of deficiency of stamp duty and penalty. He submits that the petitioner, in order to show his bonafides, has already deposited the amount of Rs. 15,000/- which corresponds to the deficit stamp duty before this Court. He submits that the impugned order is the effect of precluding the petitioner from seeking a waiver of penalty from the Collector by explaining the circumstances in which the deficit arose in the first place. He therefore submits that the impugned order to the extent it imposes the penalty may be set aside.

6. Mr. M. B. D'Costa, learned Senior Advocate for the respondent No.1 relies on the provision of Section 35 of the Indian Stamp Act, 1899 to submit that the proviso to Section 35 vests no discretion in the Court and the Court, can admit document in evidence only on requiring a party to pay the deficit stamp duty and penalty of an amount equal to ten times such duty or portion. He relies on the decision of the Hon'ble Supreme Court in Gangappa And Anr v/s. Fakkirappa, (2019) 3 SCC 788.

7. Mr. D'Silva, learned Counsel now points out that what might apply is Section 6 of the Goa Stamp Act. He submits that in terms of this amendment there is no question of payment of any penalty and the only requirement may be about the payment of deficit stamp duty.

8. Upon consideration of the rival contentions and the provisions of law, I find that there was really no dispute in this mater that there was a deficit of Rs. 15,000/- insofar as the stamp duty on the instrument was concerned. The impugned order also records that there was no dispute that there was deficit of Rs. 15,000/-. Therefore, there was no error on the part of the learned Trial Judge in requiring the petitioner to pay this deficient amount.

9. Even Mr. D'Silva does not dispute that the deficit stamp duty is required to be paid and he submitted that this have been in fact deposited in this Court by the petitioner to show his bonafides. Thus, without going into the issue as to whether the correct procedure was adopted by the Civil Court or not and since there is no dispute that there was deficit stamp duty to the extent of Rs. 15,000/-, that part of the direction in the impugned order is not interfered with.

10. The amount of Rs. 15,000/- deposited by the petitioner in this Court is to be remitted to the file of the learned Trial Judge in Special Civil Case No. 18/2011/B so that the learned Trial Judge can deal with the same in accordance with law, i.e., forward the same to the Collector at the earliest.

11. The provision of Section 35 of the Indian Stamp Act particularly as interpreted by the Hon'ble Supreme Court in Gangappa (supra) suggests that the Court can insist upo