ORDER Being aggrieved by the order dated 21/7/2010 passed by V ADJ, Indore in civil suit No.8/09-B whereby the objection raised by the respondents regarding admissibility of the document was upheld, the present petition has been filed. Short facts of the case are that petitioner instituted a suit for recovery of Rs.21,94,500/-on 29/3/04 wherein it was alleged that petitioner-company supplied 7 motor vehicles to the respondents under hire purchase agreement for which 7 documents were executed by the respondents in favour of the petitioner and 7 promissory notes valuing Rs.3,13,500/-each were also executed. It was alleged that since the amount is not paid, therefore decree be passed. The suit was contested by the respondents by filing the written statement wherein plaint allegations were denied and it was prayed that suit be dismissed. On the basis of pleadings of parties learned trial court framed the issues and fixed the case for recording of evidence. An affidavit of Rahul Datta was filed by the petitioner on 5/7/09 in which description of the hire purchase agreement was mentioned and they were also marked. Case was fixed for cross-examination. After obtaining some dates, an application was filed by the respondents on 20/11/2009 alleging that documents marked by the petitioner are inadmissible in evidence, hence necessary orders be passed relating to the documents Ex.P/3 to P/9. The application was opposed by the petitioner on various grounds including on the ground that documents have already been accepted in evidence, therefore objection cannot be raised. It was also alleged that documents are duly stamped. After hearing the parties, the application filed by the respondents was allowed and it was held that documents Ex.P/3 to P/9 are inadmissible in evidence, against which the present petition has been filed. Learned counsel for petitioner submits that impugned order is illegal and deserves to be set aside. It is submitted that affidavit was filed by the petitioner on 5/7/09 wherein hire purchase agreements were marked as Ex.P/3 to P/9. It is submitted that after filing of affidavit the case was fixed for cross-examination and case was adjourned on the request of respondents from time to time. For the first time an application was filed by the respondents on 20/11/09 i.e. after more than 6 months wherein objections regarding admissibility of the document were raised. It is submitted that after filing of affidavit the case was fixed for cross-examination and case was adjourned on the request of respondents from time to time. For the first time an application was filed by the respondents on 20/11/09 i.e. after more than 6 months wherein objections regarding admissibility of the document were raised. It is submitted that since documents were accepted which was not opposed for a long time, therefore learned court below committed error in passing the impugned order. Learned counsel placed reliance on a decision in the matter of Shyamlal Vs. Sushil Kumar Agarwal, AIR 2007 SC 637 , wherein Hon. Apex Court has held that “Insufficiently stamped document if admitted in evidence, S.36 gets attracted and Court is prohibited from re-opening the matter.” Further reliance was placed on a decision in the matter of Poonamchand Vs. Bastiram Deokishan, AIR 1969 Rajasthan 313 wherein in a case document relating to the sale of truck providing for payment of price in installments and also for interest on unpaid price, also entitling seller to seize truck and keep it with him if installments are not paid in time and sell it thereafter, Rajasthan High court held that document was not exclusively agreement or memorandum of agreement relating to sale of goods falling within exemption(a) to Article 5 and document was chargeable with duty as agreement and not as conveyance. Learned counsel further submits that documents i.e. Ex.P/3 to P/9 are hire purchase agreement which are dated 27/4/01. On 27/4/01 the agreement was required to be stamped as per Article 5 of the Stamp Act, which reads as under:- Description of Instrument Proper stamp Duty 5. Agreement or memorandum of an agreement (a) If relating to the sale of bill of One rupee for every exchange or to the sale or a 10,000 rupees or part Government Security or share in an thereof of the value or incorporated Company or other body security or share corporate. (b) If not otherwise provided for Fifty rupees Exemptions Agreement or memorandum of an agreement (a) For or relating to the sale of goods or merchandise exclusively, not being a note or memorandum chargeable under No.43. (b) If not otherwise provided for Fifty rupees Exemptions Agreement or memorandum of an agreement (a) For or relating to the sale of goods or merchandise exclusively, not being a note or memorandum chargeable under No.43. (b) Made in the form of tenders to the Central Government for or relating to any Loan Agreement to Lease, see Lease (No.35) It is submitted that for hire purchase agreement, a separate entry has been inserted in Article 33 w.e.f. 13/8/2002 which reads as under:- Description of Instrument Proper Stamp Duty 33. Gift-Instrument of, not The same duty as a being a settlement (No.58) or conveyance (No.23) for market Will or Transfer (No.62) value equal to market value of the property which is subject Hiring Agreement or matter of gift. Agreement for service, See Agreement (No.5). It is submitted that till 12/8/2002, hire agreement was required to be stamped as per Article 5 and since the document was of the year 2001, therefore learned court below committed error in holding that document has not been properly stamped. Learned counsel placed reliance on a decision in the matter of K.Venkatadri Sarma Vs. Inspector General of Registration and Stamps, AIR 1986 AP 256 wherein dispute was that A.P.Housing Board had alloted and given a house on hire purchase. The question arose whether the agreement of hire purchase is a lease, the High Court held that document is an agreement covered by Article 5 of Schedule-1. Further reliance is placed on a decision in the matter of State Bank of India Vs. M/s Victory Export Import Syndicate, AIR 1978 JK 76 wherein the question was whether a transaction of hypothecation is equivalent to transaction of pledge or pawn, the Jammu and Kashmir High Court held that a transaction of hypothecation is different from pledge or pawn. It was further held that a deed of hypothecation is required to be stamped according to Article 5 of Schedule 1 and not under Article 6 of Schedule 1 of the Stamp Act. It is submitted that petition be allowed and impugned order be set aside. Mr. Vinay Saraf, learned counsel for respondents submits that since the document was not properly stamped, therefore learned court below has rightly passed the impugned order. Learned counsel placed reliance on a decision in the matter of Instalment Supply(Pvt) Ltd. Vs. It is submitted that petition be allowed and impugned order be set aside. Mr. Vinay Saraf, learned counsel for respondents submits that since the document was not properly stamped, therefore learned court below has rightly passed the impugned order. Learned counsel placed reliance on a decision in the matter of Instalment Supply(Pvt) Ltd. Vs. Union of India, AIR 1962 SC 53 wherein Hon. Apex Court held that “agreement of hire-purchase with option to purchase the goods hired contained not only a contract of bailment simpliciter but also an element of sale, which element has been seized upon by the legislature for the purpose of subjecting a transaction like that to the sales tax.” Further reliance is placed on a decision in the matter of Hindustan Construction Co. Vs. Board of Revenue, AIR 1986 Kerala 142, wherein there was an agreement by a Company with the State Electricity Board for constructing a bridge. The company executed a document purportedly to hypothecate tools, equipments and plants in favour of the Electricity Board as security for the advance to be paid to the Company, Kerala High Court held that “document was not chargeable to stamp duty under Art.37 as a deed of mortgage but was chargeable at a lesser rate as an agreement relating to a pawn or pledge within the meaning of Art.6.” Lastly reliance is placed on Full Bench decision in the matter of Chief Controlling Revenue Authority Madras, Referring Officer Vs. M/s Sundaram Finance(P) Ltd.,AIR 1966 Madras 177 wherein Full Bench of Madras High Court held that “Hire purchase agreements are for moveable properties and are also to be regarded as title deeds. When a party purports to deliver such agreements which are moveable properties to his creditor, against the repayment of the debt, and specifically declares that the creditor as pledgee can retain the properties with a lien against the repayment of the debt, the transaction is to be treated as an agreement to pledge moveable property. The State can properly claim in such a case that the transaction falls within the scope of Art.6 of Sch.1 and is therefore liable to tax accordingly. So far as other objection relating to the stage of raising objection is concerned, learned counsel submits that before beginning of the cross examination, the objection was raised, therefore it cannot be said that objection was raised after acceptance of the document. So far as other objection relating to the stage of raising objection is concerned, learned counsel submits that before beginning of the cross examination, the objection was raised, therefore it cannot be said that objection was raised after acceptance of the document. It is submitted that petition be dismissed. Order XVIII Rule 4 CPC deals with recording of evidence. As per sub-clause I of Rule 4, in every case the examination-in-chief of witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence. As per proviso to sub Rule 1 where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court. In the present case the documents were filed along with affidavit but there was no order of the court. The objection was raised regarding admissibility of the said document before starting the cross examination. From perusal of record it is evident that documents were exhibited by the petitioner along with affidavit filed under Order XVIII Rule 4 CPC and thereafter case was adjourned. Objection was filed by the respondents on 20/11/2009. It is true that application was filed after considerable delay but in between there was no progress in the matter, therefore only on the basis that objection was not raised at the time when the affidavit was filed by the petitioner, it cannot be said that respondents lost their right to raise objection about the admissibility of the document. Apart from this, when the documents were filed along with the affidavit, no order was passed by the Court relating to admissibility of the documents. In the circumstances, this court is of the view that learned court below committed no error in entertaining the application whereby objections were raised regarding admissibility of documents. So far as that part of the order whereby learned court below has held that document is inadmissible in evidence on the ground that document is not properly stamped is concerned, undisputedly the agreements are dated 27/4/2001 which are marked as Ex.P/ 3 to P/9. Article 33 of the Stamp Act deals with the document relating to hiring agreement which came in force w.e.f. 13/8/2002. Article 33 of the Stamp Act deals with the document relating to hiring agreement which came in force w.e.f. 13/8/2002. Thus it is clear that there was no separate and specific Article in the Stamp Act for dealing with hiring of agreement at the time when the document Ex.P/3 to P/9 were executed. In the matter of Chief Controlling Revenue Authority Madras, Referring Officer Vs. M/s Sundaram Finance(P) Ltd., AIR 1966 Madras 177, one company namely Sundaram Finance was granting vehicles on hire purchase and was getting executed hire purchase agreements from the person taking vehicles on hire purchase. The said Sundaram Finance had taken loan from Punjab National Bank and had pledged such agreements of hire purchase as security with the said bank. The question in such case was whether the document of loan executed between Sundaram Finance and Punjab National Bank was covered by Article 5 or Article 6. Hence, the question involved in the said case was that what is the stamp duty payable on the document executed between the Bank and Sundaram Finance. The Madras High Court held that the transaction between the Bank and Sundaram Finance was a transaction of pledge, hence was chargeable under Article 6 of Schedule-1 of the Stamp Act. Hence, this case has no application to the present case. In the matter of Instalment Supply (Pvt) Ltd. Vs. Union of India, AIR 1962 SC 53 , the question was levy of sales tax on the transaction of hire purchase. It was observed by the Hon'ble Supreme Court that under the provisions of Central Sales Tax Act the transaction of hire purchase is included within the definition of sale under the Central Sales Tax Act, hence since the agreement of hire purchase is having an option to purchase the goods hired, therefore, it has an element of sale also, therefore the transaction of hire purchase is liable to sales tax. This case was under the Sales Tax Act and there was no question either involved or was decided by the Supreme Court with regard to the amount of Stamp Duty leviable on hire purchase agreement. Hence this case has also no application to the present case. In the matter of Hindustan Construction Co. Vs. Board of Revenue, AIR 1986 Kerala 142, the company namely Hindustan Construction Company has taken a contract from State Electricity Board. Hence this case has also no application to the present case. In the matter of Hindustan Construction Co. Vs. Board of Revenue, AIR 1986 Kerala 142, the company namely Hindustan Construction Company has taken a contract from State Electricity Board. The said company has received certain advances from the Electricity Board. By way of security of such advances, the tools, equipment, plants were hypothecated in favour of the Electricity Board, hence the High Court held that the transaction was of pawn or pledge. In this case there was no question involved of hire purchase, nor was the question to consider the transaction of hire purchase. Hence the aforesaid decision has also no relevance or application to the present case. Now this court has to examine the stamp duty which was payable on the document Ex.P/3 to P/9 which were executed on 27/4/2001. Article 33 of Stamp Act came in force on 13/8/2002. Article 5 has already been reproduced in the earlier part of judgment. Article 6 of the Act reads as under:- 1. AGREEMENT RELATING TO DEPOSIT OF TITLE-DEEDS, PAWN OR PLEDGE, that is to say, any instrument evidencing an agreement relating to Proper stamp duty. (1) The deposit of title deeds or instruments constituting or being evidence of the title to any property whatever (other than a marketable security); or (2) The pawn or pledge or movable property, where such deposit, pawn or pledge has been made by way of security for the repayment of money advance or to be advanced by way of loan or an existing or future debt- (a) If such loan or debt is repayable 20% of the amount on demand or more than 3 months of loan or debt from the date of instrument a Bill of Exchange evidencing the agreement for the amount secured. (b) If such loan or debt is repayable Half the duty not more than three months from the payable under date of such instrument sub-clause (a) of this article Explanation – For the purpose of clause(1) of this article, notwithstanding anything contained in any judgment, decree of order of any Court or order of any authority, any letter, note memorandum or writing before to the deposit of title deeds whether written or made either before or at the time when or after the deposit of title deeds is affected, and whether it is in respect of the security for the first loan or any additional loan or loans taken subsequently, shall in the absence of any separate agreement or memorandum of agreement relating to deposit of such title deeds, be deemed to be an instrument evidencing an agreement relating to the deposit of title deeds. Since Article 33 which directly deals with agreement related to agreement of hypothication came in force on 13/08/2002 and the documents in question are dated 27/04/2001, therefore, it can safely be said that in the Indian Stamp Act there was no article which directly covers the stamp duty payable on a deed of hypothication. So far as Article 6 is concerned, it deals with agreement relating to deposit of title deeds, pawn or pledge. In the present case the agreement which is alleged to have been executed between the parties is not relating to deposit of title deed, pawn or pledge, therefore, Article 6 is not applicable. Keeping in view the law laid down by the Andhra Pradesh High Court, Jammu & Kashmir High Court, Kerala High Court and also law laid down by the Hon'ble Apex Court in the matter of Instalment Supply (Supra) and article 5 which relates to the agreement relating to sale of goods, this Court is of the view that appropriate article which is applicable is article 5 and not 6. In view of this, petition filed by the petitioner is allowed and the impugned order so far as it relates to applicability of Article 6 of Stamp Act is concerned, is set aside with a direction to the learned Court below to examine the admissibility of the documents keeping in view the provisions of Article 5 of Indian Stamp Act. With the aforesaid observations, petition stands disposed of. No order as to costs.