The demand of stamp duty and penalty by the court under section 35 of the Indian Stamp Act is provisional and subject to the procedure prescribed in other sections of the Act.

( 1 ) THIS petition under Art. 227 of the Constitution of India is directed against the order dated 7-10-2006 passed by the Vth Additional District Judge, Ratlam in Civil Suit No. 17-A/2006.

( 2 ) INITIALLY, the petitioner/plaintiff filed a suit for specific performance based upon the agreement of sale dated 30-11-1990, 24-4-1991 and 15-11-1991. Later on, the plaint was amended and the plaintiff is also claiming the relief of possession as according to him, he was dispossessed during the pendency of the suit. At the time of the evidence, the plaintiff wanted to rely upon the aforesaid 3 agreements of sale and wanted to introduce them as documentary evidence. An objection was taken by the other side with regard to the admissibility of the documents on the ground that they were insufficiently stamped. Considering the objection raised by the other side, learned trial Judge sustained the objection and directed the plaintiff to pay the deficit stamp duty holding that the agreement of sale was a conveyance and as such, covered by Art. 23 of Schedule I-A of Indian Stamp Act as is applicable to the state of Madhya Pradesh. Learned trial judge also imposed penalty @ 10 times of the stamp duty payable on the instrument and directed the plaintiff to pay the deficit stamp duty along with the penalty by the next date of hearing or to declare that he does not want to exhibit those documents. Being aggrieved by this order, present writ petition has been filed, as mentioned hereinabove.

( 3 ) AFTER having heard learned counsel for the parties at length and going through the material available on the record, in the opinion of this Court, writ petition deserves to be allowed to the extent indicated hereinbelow.

( 4 ) SECTION 33 of the Indian Stamp Act enjoins a duty to impound the instrument insufficiently stamped. After the document is impounded u/s. 35 of the Act, two courses are open to the Court. The first course is to admit the document in evidence subject to the exceptions upon payment of the duty chargeable thereon and penalty, if so tendered by the party producing the document. After the stamp duty and the penalty are so paid, the Court is required to send to the collector. Stamps an authenticated copy of the document together with the certificate in writing stating the amount of duty and the penalty levied in respect of the instrument and also to send such amount to the collector Stamps as is provided by sub-section (1) of S. 35 of the Act. Second course open to the Court is when the party producing the document fails, to pay the duty and the penally, the Court must send the original document to the Collector Stamps who shall then take necessary steps for realising the stamp duty and the penalty. There is no other course open to the Court like keeping the unstamped document on the record without realising the stamp duty and the penalty. The jurisdiction to decide the question of the stamp duty conferred by proviso to S. 35 of the Act is only incidental to the reception of the document in evidence. If the party producing the document wants adjudication by the Collector Stamps, then the court must follow the procedure prescribed in Ss. 33 and 38 (2) of the Act and it is impermissible to impose such a decision on a party. The demand of the duty and the penalty by the Court u/s. 35 of the Act is only provisional liable to be altered by the procedure prescribed in other sections of the Act. If, instead of adopting the procedure prescribed in S. 35 and S. 38 of the Act, the judge passes an order directing the impounding and payment of penalty without passing any appropriate order under the proviso to S. 35 of the Act, the order is without jurisdiction. In the present case, from the perusal of the order impugned, it is clear that the Court below has imposed its decision on the plaintiff without leaving the option of adjudication by the Collector Stamps. The order impugned is, thus unsustainable in law and accordingly, it is hereby set asid

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