( 1. ) SHRI V. P. Saraf, Advocate for the petitioners. SHRI S. K. Pawnekar, Advocate for the respondent No. 1. SHRI V. Phadke, Govt. Advocate for respondent - State. Heard. The petitioners/defendants being aggrieved by the order dated 13-5-2010 passed by the learned Addl. Distt. Judge, Susner, in Civil Suit No. 12 A/10, directing the respondent No. 1 plaintiff to pay the duty and penalty on the document in dispute in light of the explanation appended to Article 23 of the Indian Stamp Act in its application to the State of Madhya Pradesh, requiring the plaintiff to pay 7 1/2% stamp duty on the face value of the document and pay ten times penalty.

( 2. ) FACTS briefly stated are that the respondent No. 1 Anil Kumar filed a suit for specific performance of the contract/agreement with a further submission that possession of the property was handed over to him and a document evincing the agreement between the parties and delivery of possession was executed on 18-4- 2007 (Annexure P/4). The petitioner defendants, after putting in their appearance in the matter, raised various pleadings. The trial Court on 5-4-2010 framed issues.

The petitioners raised an objection submitting inter-alia that the document (Annexure P/4) contained a recital that possession was delivered to the plaintiff, therefore, the document would be a conveyance and under Clause 23 of the Schedule appended to the Indian Stamp Act, 1899, the document was required to be executed upon appropriate stamps and as the document was not on appropriate stamps, it was liable to be impounded with a further direction to the plaintiff to pay duty and penalty, in accordance with sections 33, 35 and 38 of the Indian Stamp Act. The petitioners also raised an objection that document was unregistered and therefore, the same is inadmissible in evidence.

( 3. ) THE trial Court rejected the objection regarding admissibility of non-registration of the document on the ground that in Madhya Pradesh amendment under section 17(c) of the Registration Act came into force with effect from 14- 1-2010 whereas the present unregistered document was executed at a time when the law did not require them to be registered would be admissible in evidence despite their non-registration and rejected the objection of the petitioner raised under section 17(1) (A) of the Registration Act. In respect of deficit stamp duty and penalty the plaintiff-respondent No. 1 however, submitted before the trial Court that the document in question was simple agreement and appropriate stamp duty has been paid, therefore, the document was admissible in evidence.

( 4. ) THE trial Court by the impugned order held that as the document recited that possession of the property was handed over to the plaintiff the document would become a conveyance and Court accordingly directed the plaintiff to pay 7.5% the stamp duty on the face value of the document (on Rs. 1,10,000/-) and directed the plaintiff to deposit the same. Being aggrieved by the said order, the petitioners have approached to this Court under Article 227 of the Constitution of India. It is submitted that only a sum of Rs. 1000/- towards the stamp duty and Rs. 10,000/- towards penalty was paid by the plaintiff.

( 5. ) PLACING reliance upon Narbada Prasad Agrawal vs. Tarun Bhawsar reported in 2009(1) MPLJ 176 and Bhismat Pandey vs. Phoola and ors., reported in 2009(4) MPLJ 486 = 2010 (I) MPJR 129, learned counsel for the petitioners submitted that unless a duty is paid on an instrument it shall not be admitted in evidence for any purpose which will include a collateral purpose. After taking me through sections 31, 32, 33, 35 and 40, it was submitted that the matter has to be referred to the Stamp Collector and the Stamp Collector has to look into the duty chargeable on the document and decide the question relating to the duty and penalty. According to him, the matter was to be referred to the Stamp Collector, who in his turn, in accordance with section 40 of the I