IMPORTANT POINT
Stamp duty-Mere payment of deficient stamp duty and penalty does not entitle to claim admission of document-- It would only be at the stage of final arguments that the Court was required to consider the nature of document, its legal effect and the worth thereof for the purpose of decision of the suit.

Rajesh Bindal, J.:-The challenge in the present petition is to the order passed by learned Civil Judge (Senior Division), Bhiwani dated December 8, 2005 whereby application moved by the petitioner/plaintiff under Section 33 read with Section 35 of the Indian Stamp Act, 1899 ( for short “the Act”) for impounding the document Ex. P-1 and payment of stamp duty and penalty thereof was dismissed.

2. Briefly the facts are that the petitioner/plaintiff filed a suit for recovery of Rs. 8 lacs against the respondent on the plea that respondent/ defendant borrowed a sum of Rs. 8 lacs from the petitioner/plaintiff to be returned within a month without interest. However, in case of failure, the same was to carry interest @ 2% per month after expiry of one month. This according to the petitioner/plaintiff was acknowledged by the respondent by way of writing on the letter pad, the signature whereon are not denied. The document i.e. acknowledgment by the respondent/defendant on the letter pad is already exhibited in the evidence. Considering the difficulty that the document in question may not be given due weight at the time of arguments, on account of non payment of stamp duty thereon, the petitioner moved an application under Section 33 read with Section 35 of the Act for permission to pay stamp duty and penalty thereon. The claim sought to be made in the application was that document being an agreement was subject to levy of stamp duty and the same having not been affixed thereon need to be impounded and the petitioner be permitted to pay stamp duty as well as penalty thereon in accordance with law. The application was contested by the respondent with the plea that alleged document is pronote and the same does not fall under the definition of agreement and the deficiency of stamp duty on pronote cannot be made good under Section 35 of the Act.

3. Learned trial Court while considering the nature of the document and holding the same to be not an agreement but a pronote rejected the prayer made by the petitioner/plaintiff for grant of permission to pay stamp duty thereon.

4. Learned counsel for the petitioner submitted that approach of the learned trial Court in dealing with the application filed by the petitioner is totally erroneous. While considering the application it was not the stage to record findings as to the nature of the documents, which could be considered only at the final stage of the arguments. By way of application all what the petitioner had prayed for was only liberty to pay the stamp duty and penalty thereof by claiming the document to be an agreement which should not have been denied. Learned counsel for the petitioner had relied upon the judgment of Himachal Pradesh High Court in Saran Dass and others Vs. Smt. Situ and others AIR 1986 Himachal Pradesh 1.

5. Relevant provisions of Sections 33 and 35 of the Act are extracted below:-

33. Examination and impounding of instruments.-

(1) Every person having by law or consent of parties, authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.

(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India when such instrument was executed or first executed: Provided that —

(a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (V of 1898);

(b) in the case of a Judge of a