OD – 14 ORDER SHEET IN THE HIGH COURT AT CALCUTTA ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL SIDE IA NO. GA/10/2025 In CS/283/2011 SUFIA KHATOON Vs ASIF ALI BEFORE:

THE HON’BLE JUSTICE SUGATO MAJUMDAR Date: 30^th April, 2025 Appearance:

Mr. Arif Ali, Adv.

Mr. Sarban Bhattacharyaa, Adv.

…..For the Plaintiff Ms. Swati Agarwal, Adv.

Mr. C.S. Saha, Adv.

…. For the Defendant The Court: Since, the application, namely, GA 10 of 2025 is part-heard it is retained for hearing before this Bench.

The instant application is filed by the Defendant praying for impounding of Ext. ‘A’ which is an unregistered agreement for sale. It is contended that initially the suit was heard ex parte. In course of ex parte hearing on 22/06/2012, the unregistered agreement for sale dated 29/01/2008 was adduced in evidence and marked as Ext. ‘A’. No formal order was passed. No order is there as to why an improperly stamped document should not be admitted. Relying on the decision of the Supreme Court of India in G. M. Shahul Hameed Vs. Jayanthi R. Hegde [(2024) 7 SCC 719], the Learned Counsel for the Defendant argued that irrespective of any objection, an insufficiently stamped document is liable to be impounded. On previous occasion, at the time of marking the document, this Court did not pass any reasoned order explaining why an insufficiently stamped document should be admitted in evidence. Therefore, as submitted, decision on admission of the document was postponed. The document was only tentatively marked without applying any judicial mind. Therefore, according to the Learned Counsel for the Defendant the document being Ext. ‘A’ should be impounded.

The Learned Counsel for the Plaintiff strongly objected to the plea of impounding. Referring to Section 36 of the Indian Stamp Act, 1899, it was submitted that where an instrument has been admitted in evidence, such admission should not be called in question at any stage or suit or proceeding on the ground of insufficiency of stamp. It was submitted that the document was admitted in evidence, in ex parte proceedings; at that time, there was no objection for admitting such documents. Presently, it is contended, that the Defendant has lost right to raise dispute regarding the document.

In G. M. Shahul Hameed’s case (supra) the Supreme Court of India considered various provisions of the Stamp Act and previous decisions of the Supreme Court of India. It is very specifically observed that the Presiding Officer of a Court when confronted with the question of admitting an instrument chargeable with duty which is either not stamped or is insufficiently stamped ought to judicially determinate the issue. Application of judicial mind is sine qua non having regard to the express language of the provisions. Pivotal point is whether the document in question was marked and exhibited on exercise of judicial mind or inadvertently.

The Court should judicially decide the issue of admissibility. If no such judicial mind has been exercised, decision making remains postponed, ousting the scope of operation of Section 36. There is no order reflecting judicial mind, as to whether, in spite of insufficiency of stamp, the said agreement for sale dated 29/01/2008 was marked and exhibited. Decision making, was obviously postposed, keeping space for impounding. Section 36 is not attracted since there was no exercise of judicial mind to exhibit the document.

Ext. ‘A’ is agreement for sale which is insufficiently stamped. Therefore, let the document be impounded and sent to the Collector for doing the needful in terms of the Indian Stamp Act, 1899. The Learned Registrar, Original Side shall forward this document to the Collector. Copy of the document may be retained in the record.

GA 10 of 2025 stands disposed of.

The Suit will appear in the list of the Bench having determination.

(SUGATO MAJUMDAR, J.)