1. This Civil Revisionhas been preferred against the Order, dated 111. 2004 made in the Interlocutory Application in I.A. No. 18287 of 2004 in O.S. No.2970 of 2002 on the file of the XVIII Asst. Judge, City Civil Court, Chennai.

2. TheRevision Petitioner is the First Defendant in the Suit, that was filed by the Respondent herein, seeking relief of declaration that the mortgage deed, dated 29.04.2000 executed by the Plaintiff in favour of the First Defendant relating to the suit schedule property was redeemed and also permanent injunction restraining the Defendants in the Suit from bringing the property for sale in public auction to realize the mortgage amount.

3. The Interlocutory Application in I.A. No. 18287 of 2004 was filed by the Plaintiff in the Suit under Sections 33 and 35 of Indian Stamp Act to impound Ex.B.1 and not to act upon till for the document, proper stamp duty with necessary penalty amount is paid by the Defendant. The Interlocutory Application was allowed by the impugned order and the Defendant was directed to pay stamp duty with penalty for Ex.B.1 on or before o12. 2004. Against which, the First Defendant in the Suit has preferred this revision.

4. As per the impugned order, it is seen that D.W.1 has stated that Ex.B.1 is an agreement and the terms and conditions of the same at No.2 reads as follows:

“2. The second part has advanced a sum of Rs.1,00,000/- as loan with interest to the first party. Apart from that second party’s friends have contributed a sum of Rs.2,00,000/- to the first party, which first party undertakes to pay through second party with interest at 36% per annum.”

Sri Balaji Traders, Proprietor Kota Nathamuni is stated as first party and Sri. B.K. Mittal, Proprietor, Rudra Financial Service is the second party. The said Ex.B.1 is in ten rupees non-judicial stamp paper and not duly stamped. According to the learned Counsel appearing for the Respondent/Plaintiff, the document cannot be acted upon, unless it is duly paid with stamp duty and penalty.

5. In the counter, it was contended that Ex.B.1 was only a hypothecation agreement, dated 03.05.2000 and as such prevailing stamp duty of Rs.10/- was paid. As no objection was raised while the said document being marked, the admissibility of the document, since that was already marked already, cannot be questioned later on. It is not in dispute that as per Section 2(5)(b) of Indian Stamp Act, ‘Bond’ includes any instrument attested by a witness and not payable to order or bearer whereby a person obliges himself to pay money to another.

6. As per the impugned order, it is seen that under Ex.B.1, the Defendant advanced a loan of Rs.1 lakh and Defendant’s friends gave Rs.2 lakhs to the Plaintiff and the Plaintiff undertook to repay the said amount with 36% interest p.a., hence, Ex.B.1 is only a bond.

7. Learned Counsel appearing for both sides have not disputed the fact that after the instrument is duly stamped, has to be impounded under Sections 33 and 35 of the said Act. As per Section 35 of the Act, the document cannot be admitted in evidence, if it is not duly stamped. In the instant case, the document was already marked, however, the Court below has held subsequently that stamp duty has to be paid with penalty for Ex.B.1

8. In Hindustan Steel Ltd. v. M/s. Dilip Constructions Co., AIR 1969 SC 1238, the Hon’ble Supreme Court has held as follows:

“4……The agreement ignores the true import of Section 36. By that Section an instrument once admitted in evidence shall not be called in question at any stage of the same Suit or proceeding on the ground that it has not been duly stamped. Section 36 does not prohibit a challenge against an instrument that it shall n ot be acted upon because it is not only duly stamped, but on that account there is no bar against an instrument not duly stamped being acted upon after payment of the stamp duty and penalty according to the procedure prescribed by the Act. The doubt, if any, is removed by the