Subrata Talukdar, J.

In this application under Article 227 of the Constitution of India the petitioner has challenged the order impugned no. 24 dated 26th July, 2010 passed by the Ld. 2nd Civil Court (Junior Division), Serampore in Title Suit No. 118 of 2009.

The brief facts of the case are as follows:-

a) That Schedule ‘A’ properties belonged at all material times with the defendant nos. 1 & 2, who are the opposite parties in the present application.

b) According to the plaintiff, who is the petitioner in this application the defendant nos. 1 & 2 were aggrieved with the transfer of the suit property in favour of the plaintiff. During the talk of such transfer the defendant no. 3, who is the opposite party no. 3 in this application was present.

According to the terms arrived at between the parties the petitioner/plaintiff would pay the sum of Rs. 25000/- and agreement of sale was to be executed by the defendants no. 1 & 2 in favour of the petitioner/plaintiff. According to the petitioner/plaintiff a sum of Rs. 5000/- was accepted towards execution of the agreement from the plaintiff by the defendant nos. 1 & 2.

c) Since there was an embargo on transfer of land near Delhi Road it was, inter alia, agreed between the parties that when such embargo would be lifted, the suit property will be registered in favour of the petitioner/plaintiff. However, on the defendant nos. 1 & 2/OP nos. 1 & 2 refusing to register the suit property in favour of the petitioner/plaintiff in spite of the latter expressing his readiness and willingness to pay the balance consideration amount the plaintiff filed Title Suit No. 118 of 2009 before the Ld. 2nd Civil Court (Junior Division), Serampore claiming specific performance of contract along with consequential reliefs.

d) In connection with the said suit the petitioner/plaintiff also filed an application under Order 39 Rules 1 & 2 read with Section 151 of the Code of Civil Procedure. The said injunction application was resisted by the defendants/OPS by filing written objection.

Upon hearing the parties by order dated 11th June, 2009 the Ld. Trial Court was pleased to restrain the defendants from transferring the ‘A’ & ‘A-2’ suit property till the 25th of June, 2009 with direction upon the defendants to show cause as to why the application for temporary injunction shall not be made absolute.

However, on the next date of hearing an objection was raised on behalf of the defendants that the document being the agreement of sale relied upon by the petitioner/plaintiff was insufficiently stamped. The Ld. Trial Court upon consideration of such objection was pleased to record that the said agreement for sale was exhibited and made Exbt. 1 with objection and was referred to the Collector for valuation as provided under the Indian Stamp Act. The Ld. Trial Court further took the view that the plaintiff had accepted the reference to the Collector for valuation and was ready and willing to pay the deficit stamp duty as well as the penalty that may be imposed by the Collector.

The Ld. Trial Court was pleased to consider the provisions of Section 43 of the Indian Stamp Act and opine that a duty is cast upon the Court to fix the Stamp Duty payable irrespective of the fact whether the document is exhibited or not.

Noticing the provisions of Order 7 Rules 5, 7 & 17 of the Code of Civil Procedure, the Ld. Trial Court found that on production of sufficient cause a direction can be given for impounding a document. Accordingly, the Ld. Trial Court impounded the agreement and sent the same to the Collector to ascertain the stamp duty payable. The Ld. Trial Court was of the further opinion that the application for injunction filed by the plaintiff under Order 39 Rules 1 & 2 of the Code of Civil Procedure will be considered only after obtaining the report of the Collector and upon deposit of the deficit Stamp Duty and penalty by the plaintiff.

Being aggrieved the plaintiff has filed the present CO 2751 of 2010.

Sri Rame