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2005 DIGILAW 833 (AP)

Paladugu Venu v. Vakkavanthula Srujana

2005-09-02

N.V.RAMANA

body2005
( 1 ) THIS C. R. P. is directed against the order dated 9-11-2004, passed by the Junior Civil judge, Kodad, dismissing the application in i. A. No. 609 of 2004 in O. S. No. 184 of 2004, filed by the petitioner for sending the document, namely the receipt said to have been issued by the husband of the respondent, to the District Collector for impounding for collecting the deficit stamp duty. ( 2 ) HEARD the learned counsel for the petitioner-defendant and the learned counsel for the respondent-plaintiff. ( 3 ) THE learned counsel for the petitioner submitted that inasmuch as even an unstamped document can be impounded under the provisions of Section 38 of the indian Stamp Act, 1899 (for short the Stamp act ) through the Collector, the Court below committed an error in not sending the document to the Collector for impounding for collection of stamp duty on the ground that there was no stamp duty at all on the document. ( 4 ) ON the other hand, the learned counsel forthe respondent contended thatthe receipt, which the petitioner prayed for sending to the collector for impounding for collection of stamp duty, was not issued by the respondent, but was issued by her husband, and impounding of such document under the provisions of Section 35 of the Stamp Act, is impermissible. Therefore, the Court below had rightly dismissed the application filed by the petitioner for sending the document to the Collector for impounding for collection of stamp duty. ( 5 ) THE respondent-plaintiff filed the suit for recovery of money against the petitioner-defendant based on a pro note. The defendant who contested the suit, pleaded discharge on the basis of a document, namely the receipt said to have been issued by the husband of the plaintiff, which was prepared on a plain paper without affixing stamps, and therefore, the plaintiff filed the present application, praying to send the said receipt to the Collector for impounding for collection of deficit stamp duty. As the receipt was made on a plain paper without stamp duty, the Court below came to the conclusion that when there is no stamp duty, the question of any deficit stamp duty does not arise, and accordingly, dismissed the application. ( 6 ) THE view taken by the Court below is contrary to the provisions of the Stamp Act. As the receipt was made on a plain paper without stamp duty, the Court below came to the conclusion that when there is no stamp duty, the question of any deficit stamp duty does not arise, and accordingly, dismissed the application. ( 6 ) THE view taken by the Court below is contrary to the provisions of the Stamp Act. ( 7 ) SECTION 2 (14) of the Stamp Act defines"instrument" as including every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded. In the case on hand, inasmuch as the petitioner based on the receipt, said to have been issued by the husband of the respondent, pleaded discharge, the receipt can be said to be falling within the definition of "instrument" as defined in Section 2 (4) of the Stamp Act, and as such, the receipt requires to be sent to the collector for impounding for collection of stamp duty. Further, under the provisions of the Stamp Act, when once an instrument chargeable with stamp duty is tendered in a civil Court, such instrument shall be impounded for examination, if it appears to the civil Court that such instrument is not duly stamped, and it has the power to impound the document and send it to the Collector for collection of stamp duty. ( 8 ) THE phrases "any instrument chargeable" and "instrument is not duly stamped" employed in Section 33 of the stamp Act, have to be understood in the light of the definitions of the words "chargeable" and "duly stamped" as defined in Sec. 2 (6) and 2 (11) of the Stamp Act. The word "chargeable" means stamp duty chargeable under the Stamp Act alone, and not under any other law in force. Section 3 of the Stamp act deals with "instrument chargeable with duty". Chapter IV of the Stamp Act deals with "instruments not duly stamped". The word "instrument" appearing in Sections 33, 35 and 36 of the Stamp Act, means instrument with duty, irrespective of the fact whether such instrument falls or does not fall within the definition under Section 2 (14) of the stamp Act. Section 38 of the Stamp Act lays down the procedure for dealing with the instrument impoundable. The word "instrument" appearing in Sections 33, 35 and 36 of the Stamp Act, means instrument with duty, irrespective of the fact whether such instrument falls or does not fall within the definition under Section 2 (14) of the stamp Act. Section 38 of the Stamp Act lays down the procedure for dealing with the instrument impoundable. ( 9 ) THE language employed in Sec. 38 (2) of the Stamp Act clearly indicates that in case where the instrument is required to be admitted, and if a party files a petition seeking directions from the Court to send the instrument to the Collector for impounding for collection of stamp duty, then such petition has to be allowed, for it would not cause any prejudice to the other side as no instruction was given by the Court to the Collector or authority as to the admissibility of the instrument in evidence, and more so when it is always open to the opposite party to take objections, if any, with regard to the admissibility of such document at the time of marking the same in evidence. What all section 35 Stamp Act provides is that instruments not duly stamped are inadmissible in evidence. Similar view was taken by this Court in the judgment reported in Balaji Chit Fund v. B. Satyanarayana m. A, Bhupati v. M. Koteswara Mudali and l Rama Seethamma v. Telugu Solipuram narasimha ( 10 ) IN the instant case, since the respondent (sic. petitioner) before seeking to make the inadmissible document admissible in evidence has sought to send the unstamped document to the Collector for impounding for collection of stamp duty, and having regard to the provisions of Section 38 (2) and other provisions of the Stamp Act, I am of the considered opinion that the Court below ought to have sent the document to the Collector for impounding for collection of stamp duty. ( 11 ) IN the above view of the matter, the order under revision cannot be sustained. Accordingly the C. R. P. is allowed and the order under revision is set aside. The Court below is directed to send the document to the collector for impounding for collection of stamp duty. No costs.