Judgment ( 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 Indian Stamp Act was to decide the matter and without completion of the said exercise the document cannot be admissible in evidence. ( 6. According to him, the matter was to be referred to the Stamp Collector, who in his turn, in accordance with section 40 of the Indian Stamp Act was to decide the matter and without completion of the said exercise the document cannot be admissible in evidence. ( 6. ) ON the other hand, Shri S. K. Pawnekar, learned counsel for the respondent No. 1, however, submitted that a perusal of sections 33, 35 and 38 would make it clear that whenever a document is impounded and is proposed to be produced in the evidence, then the Court which has impounded the document has to decide the question of duty and penalty recover the same from the person producing the document, admit the document in evidence and thereafter, in accordance with provisions of law, send to the collector an authenticated copy of such instrument together with a certificate in writing stating the amount of duty and penalty levied and also forward the amount so recovered to the Collector. His submission is that in the present matter, a sum of Rs. 11,000/- was deposited on 13-5-2010 and Rs. 77,000/- was deposited on 20th May, 2010 and that the stage of document to be sent to the Collector or further action has yet to come and at this stage, the present petition is premature. In respect of the objection of the petitioner that the Collector can only impound the document is de hors from the provisions of the Act. It is submitted that the Court has jurisdiction to admit an instrument on payment of duty and penalty as provided under section 35 of the Stamp Act. In the case of Narmada Prasad Agrawal vs. Tarun Bhawsar (supra), the plaintiff instituted a civil suit for eviction of the defendant on the ground that the defendant, a tenant, has defaulted in payment in rent. The defendant opposed the relief on the ground that he is in possession of suit property not as a tenant but by virtue of an agreement of sale executed in his favour by the erstwhile owners. The learned single Judge has held that the concerned instrument is an unregistered agreement of sale which, as per stipulation contained under section 17 of the Registration Act, requires a compulsory registration and unless the document is compulsory registered the same cannot be taken on evidence in any manner. The learned single Judge has held that the concerned instrument is an unregistered agreement of sale which, as per stipulation contained under section 17 of the Registration Act, requires a compulsory registration and unless the document is compulsory registered the same cannot be taken on evidence in any manner. In the case in hand the respondent No. 1 filed a suit for specific performance of the contract with a further submission that the possession of the property was handed over to him. Section 17(l)(Cha) of the Registration Act, came into force on 14-1-2010 and, therefore, registration is not compulsory. ( 7. ) THE issue involved in this petition has been settled by the Division Bench judgment of this Court in the Case of Umesh Kumar vs. Rajaram, 2010(2) MPLJ 104 wherein it was held as follows:- "10. From a perusal of section 33, it would clearly appear that when a person authorized under law or by consent of the parties have powers to receive evidence, then such person would be obliged to impound the document, when any document, which is insufficiently stamped is produced before him. THE word 'impound' has not been defined in the Indian Stamp Act, however, in Wharton's Law Lexicon, 14th Edition, at page 496, defined the word to mean "to place a suspected document in the custody of the Law". Strouds' Judicial Dictionary, 4th Edition, at page 1295, defines "a document is impounded when it is ordered by a Court to be kept in the custody of its officer." THE word 'impound' does not mean that the Court, which is in possession of the document, has immediately to recover duty and penalty. A true understanding of the word 'impound' only mean to authorize the Court to keep document in the custody because the Court is of the opinion that the document is either suspected or is insufficiently stamped. 11. Once a Court comes to the conclusion that the document is insufficiently stamped then it has to keep the document in its custody and then proceed in accordance with law. 12. Section 35 provides that a document chargeable with duty shall not be admitted in evidence for any purpose by any person having by law or consent of the parties authority to receive evidence, if such document is not properly stamped. 12. Section 35 provides that a document chargeable with duty shall not be admitted in evidence for any purpose by any person having by law or consent of the parties authority to receive evidence, if such document is not properly stamped. Such document shall be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, and the amount required to make up such duty, together with a penalty of five rupees, or 10 times of the amount of proper duty or deficient portion thereof exceeds five rupees, penalty would be a sum equal to ten times such duty or portion. To be more simple, Clause (a) of section 35 simply provides that if document is insufficiently stamped then duty and penalty would be recoverable. THE duty would be amount which is less on the document and the penalty would be five rupees only, but in case, the ten times penalty exceeds five rupees, then such penalty shall be ten times the amount by which the document was required to be stamped. 13. Section 38(1) if is read and understood in accordance with the scheme of the Act, it would appear that when a person impounding an instrument under section 33 has to receive evidence and admits such instrument in evidence upon payment and penalty as provided by section 35 or of duty as provided by section 37, then the Court shall be entitled to admit the document in evidence if the party producing the document is ready and willing to pay the duty and penalty ten times. Once amount of duty and penalty is deposited by the person producing the document, then the document shall be admitted in evidence and then the person who is receiving the document (in the present case, the Court) shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty and shall also send such amount to the Collector or to such person as the Collector may appoint in this behalf. Sub-section (1) of section 38 deals with the situation where the Court before receiving evidence decides the question of duty and penalty, the person desirous of producing the document in evidence is ready and willing to pay the duty and penalty and then thereafter duty and penalty is received and the document is admitted in evidence. In a case where the Court decides the question of duty and penalty, but the person, who is obliged to pay the said duty, does not pay the same, then the document would continue to be inadmissible in evidence, but as it has already been impounded by the Court, the Court has to refer the matter to the Collector under subsection (2) of section 38 of the Act. 14. Section 40 of the Indian Stamp Act provides that whenever the Collector impounds any instrument under section 33 or receives an instrument sent to him under section 38 sub-section (2), then he has to adopt a particular procedure. It is to be noted that powers of the Collector are different in different situation. When he himself is impounding the document under section 33, then he has to consider the matter and when a document is referred to the Collector under subsection (2) of section 38 by a Court, or by a person authorized to receive evidence under the law with consent of the parties, then the Collector has to decide the question whether the document is duly stamped or not. If the same is not duly stamped, then what duty and penalty is to be paid on the said document. When the document is produced in the Court and the Court impounds the same, the Collector would have no jurisdiction to impound the document under section 33 of the Act but the Collector will have to receive the document from a Court and then proceed in accordance with law. Once the matter is referred to the Collector under sub-section (2) of section 38 of the Indian Stamp Act, then he has to decide that the said instrument is duly stamped or not. Once he decides that the document is duly stamped, then he shall certify by endorsement thereon that the document is duly stamped or that it is not so chargeable with the duty. Once he decides that the document is duly stamped, then he shall certify by endorsement thereon that the document is duly stamped or that it is not so chargeable with the duty. However, if the Collector comes to the conclusion that such instrument is chargeable with duty and is not duly stamped, he shall require the payment of the proper duty or amount required to make up the same, together with a penalty of five rupees; if he thinks fit, an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof, whether such amount exceeds or falls short of five rupees. 15. A sharp distinction is to be marked in the language of section 38 and section 40 of the Act. While section 38 requires the Court to recover the duty and ten times penalty and nothing less than that, section 40 authorizes the Collector (Stamps) to recover the duty so also recover penalty, which shall not exceed ten times the amount of proper duty. Discretion given to the Collector (Stamps) is to be impose any amount of penalty, which should not necessarily be ten times, it can be less than that." ( 8. ) HOWEVER, in the present matter, it is to be seen that the document is valued Rs.1,10,000/-. Document (Exhibit P/4) is in relation to the property of sale, the document contains a recital that possession of the property has already been transferred to the respondent No. 1 plaintiff and therefore, it is a 'conveyance', as provided under Article 23 of the Schedule I-A and was chargeable with the duty of 7 1/2% on the market value of the property and ten times penalty. The trial Court was justified in requiring the plaintiff to pay 71/2% duty on the face value of the document and pay ten times penalty in accordance with sections 33, 35 and 38 of the Indian Stamp Act. The order passed by the trial Court is just and proper. After payment of stamp duty and penalty, the trial Court will impound the document and shall refer the matter to the Collector (Stamps) under section 38(2) of the Indian Stamp Act. The decisions cited by the learned counsel for the petitioners will not be applicable in the present facts and circumstances of the case. ( 9. After payment of stamp duty and penalty, the trial Court will impound the document and shall refer the matter to the Collector (Stamps) under section 38(2) of the Indian Stamp Act. The decisions cited by the learned counsel for the petitioners will not be applicable in the present facts and circumstances of the case. ( 9. ) IN view of the aforesaid discussions, this Court find that the order impugned does not suffer from any procedural infirmity or material irregularity or jurisdictional error so as to warrant interference in exercise of extra ordinary power of superintendence conferred by Article 227 of the Constitution of India. The writ petition filed by the petitioners has no merit and is accordingly dismissed with costs of Rs. 5000/- which shall be payable to the respondents No. 1 - plaintiff within eight weeks from today. Petition dismissed.