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2003 DIGILAW 1027 (AP)

Syed Nawabjan v. Gundala Suresh Reddy

2003-08-13

V.ESWARAIAH

body2003
( 1 ) THIS Civil Revision Petition is filed under article 227 of the constitution of India aggrieved by the order dated 3-9-2002 passed in I. A. No. 790 of 2002 in C. P. No. 2201 of 2002 in O. S. No. of 2002 by the Principal Senior civil Judge, Nellore. ( 2 ) THE petitioner herein who is the plaintiff, filed the said unnumbered suit against the respondent herein based on the letter executed by the respondent in favour of the petitioner for recovery of the borrowed principal amount along with the interest thereon. The office of the Trial Court took an objection with regard to the maintainability of the suit, as the Bond said to have been executed by the defendant is not stamped and registered. Therefore, unless the stamp duty and the penalty is paid the suit cannot be mumbered. ( 3 ) ON the said office objection. The petitioner filed the said I. A. No. 790 of 2002 under Section 31 of the Indian Stamp Act to send the said document to the District collector, Nellore, for impounding the same for the purpose of collecting deficit stamp duty and penalty thereon. ( 4 ) THE Trial Court by the aforesaid order dated 3-9-2002 refused to send the said document to the Collector for impounding the same for the purpose of collecting the stamp duty and the penalty on the ground that the Court itself can fix the stamp duty and penalty to be paid by the petitioner. ( 5 ) IF the party desires the Court to fix the stamp duty and penalty, no doubt the Court is empowered to fix the stamp duty and penalty. But, if the Court were to fix the stamp duty there is no discretionary power vested in it with regard to levy of lesser penalty. Except levying ten times of the stamp duty payable on the document. If the party desires to send the document to the collector, the Court has no option but to send it to the Collector for the purpose of collecting the deficit stamp duty and penalty. The issue raised in this Revision petition is no longer res integra and is squarely covered by the following Judgments of this court. If the party desires to send the document to the collector, the Court has no option but to send it to the Collector for the purpose of collecting the deficit stamp duty and penalty. The issue raised in this Revision petition is no longer res integra and is squarely covered by the following Judgments of this court. ( 6 ) IN B. V. R. Reddy v. Adoni Cooperative central Stores Limited this Court held as follows:-"if the party filing the document wants it to be admitted in evidence then only the Court shall collect the duty and penalty and then admit in evidence. But if the party instead of requiring the document to be admitted in evidence merely wants the Court to send it to the collector to be dealt with under section 40 the Court has no option but send it to the Collector as provided in section 38 (2 ). The Court cannot compel the party to pay duty and penalty and have it admitted in evidence". ( 7 ) IN Indurupalli Ramanaiah v. Somisetti radhakrishnaiah this Court held as follows. :-"indian stamp Act - Sections 33,35,38, 40 and 42 - Scope and effect - when the party requests the impounding court to send the document which is not duly stamped, but is intended to be admitted in evidence, to the Collector under Section 38 (2), the Court cannot refuse to send it to the Collector. " ( 8 ) IN Chintalapudi Annapurnamma v. Andukuri Punnayya Sastry, a Division Bench of this Court held as follows:-"stamp Act 1899 - Sections 35 and 38 - court is competent to impound the document and impose duty and penalty payable on the document - It is upto the party producing the document to pay the duty and penalty and get it admitted - If the party does not want to pay the duty and penalty as determined by court, it is open for him to ask the document to be sent to the Collector but till the duty and penalty is determined by the Collector and paid by the party the document cannot be admitted in evidence - However, the court cannot compel the party to pay the duty and penalty determined by it and get the document admitted in evidence. "therefore, it is settled law that the Court cannot refuse to send the document when the party requests the Court to send the document to the Collector for impounding. ( 9 ) ACCORDINGLY the Civil Revision Petition is allowed setting aside the order dated 3-9-2002 passed in I. A. No. 790 of 2002 in c. F. No. 2204 of 2002 in O. S. No. of 2002. The i. A. No. 790 of 2002 filed before the Trial court stands allowed and the Court below is directed to send the document i. e. , Bond dated 11-6-1999 executed by the defendant in favour of the petitioner to the Collector for impounding in accordance with law.