ORDER 1. This writ petition is directed against order dated 18.10.13 passed by the Additional District Judge No.2, Bhilwara in Civil Suit No.39/11, whereby an application preferred by the petitioners-defendants under Order XXXXVII Rule 1 CPC seeking review of order dated 18.9.12 rejecting the objection of the petitioners regarding admissibility in evidence of a document i.e. an agreement to sell dated 4.7.09, stands dismissed. 2. The relevant facts are that the respondent-plaintiff preferred a suit for recovery of a sum of Rs.2,70,000/-with the averments that he had purchased the khatedari land of the petitioners-defendants comprising khasra no.580 ad measuring 3 bighas 2 biswas situated in village-Purohito Ka Khera, Patwar Halka Uma Ji Ka Khera, Tehsil-Bijoliya, District-Bhilwara vide agreement to sell dated 4.7.09. It is averred that a sum of Rs.1 lac was paid to the petitioners-defendants at the time of execution of the agreement to sell on 4.7.09 and thereafter, a sum of Rs.1,05,000/-was paid on 28.9.09, towards the consideration for sale. Since the petitioners herein failed to execute the sale deed, the respondent-plaintiff preferred the suit for recovery of an amount of Rs.2,05,000/-alongwith interest quantified at Rs.65,400/-. The suit is being contested by the petitioners by filing a written statement thereto. 3. During the pendency of the suit, the petitioners raised an objection that the document i.e. agreement to sell dated 4.7.09 is not admissible in evidence for want of sufficiency of stamp. The objection raised stood rejected by the court below vide order dated 18.9.12 observing that the suit has been filed by the respondent-plaintiff only for the recovery of the money advanced towards the consideration of sale and therefore, the document cannot be held to be inadmissible in evidence so far as it relates to the acknowledgment of the payment made. 4. The petitioners-defendants preferred a petition seeking review of the order dated 18.9.12 relying upon a decision of the Hon'ble Supreme Court in the matter of 'Avinash Kumar Chauhan vs. Vijay Krishna Mishra', 2009 DNJ SC 364. The review application stands dismissed by the court below observing that the provision incorporated in Article 5 (bb) of the Schedule attached to Rajasthan Stamp Act, 1998 ( for short “the Act”) are attracted only when the suit for specific performance of the contract is filed on the basis of the agreement to sell. The review application stands dismissed by the court below observing that the provision incorporated in Article 5 (bb) of the Schedule attached to Rajasthan Stamp Act, 1998 ( for short “the Act”) are attracted only when the suit for specific performance of the contract is filed on the basis of the agreement to sell. The court observed that for the purpose of the suit filed, the agreement to sell falls within the purview of Article 5(c) of the Schedule attached to the Act and therefore, the stamp duty of Rs.100/-paid is sufficient. 5. Learned counsel for the petitioners contended that admittedly by way of agreement to sell, the part payment of consideration was made and possession of the property was handed over and therefore, the instrument was chargeable with the duty as conveyance, in terms of provisions of Article 21 of the Schedule attached to the Act. Learned counsel submitted that the provisions of Article 5(bb) and 5(c) of the Schedule are not attracted in the matter. Learned counsel submitted that for determining the admissibility of the document, the nature of the suit is not at all relevant and therefore, the document which was required to be sufficiently stamped, cannot be permitted to be admitted in evidence. In this regard, learned counsel has relied upon the decision of the Hon'ble Apex Court in the matter of Avinash Kumar Chouhan's case (supra). Learned counsel submitted that document unsufficiently stamped has to be impounded and referred by the court to the Collector (Stamp) for determination of proper stamp duty and the penalty payable. 6. On the other hand, the counsel appearing for the respondent-plaintiff reiterating the stand taken before the court below, submitted that the suit preferred by the respondent-plaintiff is only for the recovery of the money and therefore, the document i.e. agreement to sell placed on record can always be admitted in evidence for establishing the part payment made towards the sale consideration. Learned counsel submitted that the suit preferred being not for specific performance of the contract, the provisions of Article 5(bb) or Article 21 of the Schedule attached to the Act are not attracted in the matter and therefore, the order impugned passed by the court below does not warrant any interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 7. 7. I have considered the rival submissions and perused the material on record. 8. It is to be noticed that before the court below, on behalf of the petitioner it was contended that the document in question for the purpose of levy of stamp duty is covered by Article 5(bb) of the Schedule whereas, the respondent contended that it falls within the purview of Article 5(c) of the Schedule. However, the stand taken by the petitioner before this court is that for the purpose of levy of stamp duty, the document in question falls within Article 21 of the Schedule and the provisions of Article 5(bb) & (c) of the Schedule are not attracted in the matter. The Articles 5(bb), 5(c) and 21 to the extent germane to the controversy involved, may be beneficially quoted: “5(bb) if relating to purchase or sale of an immovable property, when possession is neither given nor agreed to be given. Three percent of the total consideration of the property as set forth in the agreement or memorandum of agreement: Provided that the stamp duty paid on such agreement shall at the time of the execution of a conveyance in pursuance of such agreement subsequently be adjusted towards the total amount of duty chargeable on the conveyance, if such conveyance deed is executed within three years from the date of agreement. 5(c) if not otherwise provided for. One Hundred rupees Exemptions.-Agreement or memorandum of agreement,- (a) for or relating to the sale of goods or merchandise exclusively, not being a Note or Memorandum Chargeable under No.40; (b) made in the form of tenders to the Government for or relating to any loan. 21. Conveyance as defined by Section 2(xi),- (i) if relating to immovable property; Eleven percent of the market value of the property. (ii)......xxx. ..xxxx.. (iii)....xxx ...xxx... Exemption:-....xxxx. Explanation:-(i) For the purpose of this article an agreement to sell an immovable property or an irrevocable power of attorney or any other instrument executed in the course of conveyance or lease, e.g. allotment letters, patta, licence etc. (ii)......xxx. ..xxxx.. (iii)....xxx ...xxx... Exemption:-....xxxx. Explanation:-(i) For the purpose of this article an agreement to sell an immovable property or an irrevocable power of attorney or any other instrument executed in the course of conveyance or lease, e.g. allotment letters, patta, licence etc. shall, in case of transfer of the possession of such property before, at the time of or after the execution of any such instrument, be deemed to be a conveyance and the stamp duty threreon shall be chargeable accordingly: Provided that the provisions of Section 51 shall be applicable, mutatis mutandis to such agreement or power of attorney or instruments as are applicable to a conveyance: Provided further that the stamp duty already paid on such agreement or power of attorney or instrument shall at the time of the execution of a conveyance or lease in pursuance of such instruments subsequently, be adjusted towards the total amount of duty chargeable on the conveyance or lease conveyance conveyance or lease. Explanation:-....xxxx...” 9. A perusal of Article 5(bb) of the Schedule reveals that it is attracted when the instrument relates to purchase and sale of immovable property where possession is neither given nor agreed to be given. It is a matter of record that in the instant case while executing the agreement to sell and making part payment of the consideration, the possession of the property has been handed over by the seller to the purchaser and therefore, in the considered opinion of this court, the instrument in question though relating to the purchase and sale of immovable property, is not covered by the provisions of Article 5(bb) of the Schedule for the purpose of levy of stamp duty. 10. It is to be noticed that as per clause (i) of Article 21 of the Schedule, the instrument falling within the definition of 'conveyance' in terms of Section 2(xi) of the Act, if related to immovable property, the proper stamp duty payable is 11% of the market value of the property. But then, the Explanation (i) attached thereto, provides that for the purpose of this Article, an agreement to sell an immovable property or irrevocable power of attorney or any other instrument executed in the course of conveyance or lease e.g. allotment letters, patta, license etc. But then, the Explanation (i) attached thereto, provides that for the purpose of this Article, an agreement to sell an immovable property or irrevocable power of attorney or any other instrument executed in the course of conveyance or lease e.g. allotment letters, patta, license etc. shall in case of transfer of possession such property at the time or after the execution of such instrument, be deemed to be conveyance and the stamp duty thereon shall be chargeable accordingly. Indisputably, in the instant case, while making the part payment of sale consideration, the possession of immovable property has been handed over by the seller to the purchaser and therefore, by virtue of Explanation (i) attached to Article 21 of the Schedule, the instrument in question shall be deemed to be conveyance and the stamp duty payable thereon has to be determined as provided for under Article 21 of the Schedule. 11. Coming to Article 5(c), apparently it covers only those agreement or memorandum of an agreement in respect of whereof, the proper stamp duty payable has not been specifically provided for. As discussed hereinabove, the instrument in question is specifically covered by Article 21 of the Schedule and therefore, the residue entry as contained in Article 5(c) cannot be invoked. 12. In view of the discussion above, the court below has erred in holding that the agreement to sell in question is covered by Article 5(c) of the Schedule for the purpose of determination of proper stamp duty. The instrument in question is not covered by Article 5(bb) of the Schedule either, rather, it is covered by Article 21 of the Schedule and therefore, apparently, the same is not sufficiently stamped. 13. The determination of the stamp duty on an instrument under the provisions of the Act, has nothing to do with the nature of the suit or relief claimed therein and thus, the court has seriously erred in holding that since the suit preferred relates to the recovery of the money, the document in question needs to be construed only in that perspective. 14. This takes this court to consider as to what course was required to be adopted by the court below in respect of the document in question sought to be tendered in evidence. 15. 14. This takes this court to consider as to what course was required to be adopted by the court below in respect of the document in question sought to be tendered in evidence. 15. As per provisions of Section 37, every person having by law or consent of the parties, authority to receive evidence and every person incharge of the public office except an officer or police before whom any instrument chargeable to duty is produced and if it appears to him that such instrument is not duly stamped shall impound and refer the same to the Collector for the determination of the stamp duty together with the penalty payable. Thus, it is the duty of the Court to impound the document not duly stamped and make a reference to the Collector for determination of the stamp duty and penalty payable, notwithstanding the fact that the party concerned has not expressed his readiness and willingness to pay the deficient stamp duty and penalty. 16. Section 39 of the Act mandates that no instrument chargeable with a duty under the Act shall be admitted in evidence for any purpose by any persons having by law or consent of the parties authority to receive evidence shall be acted upon registered or authenticated by any such person or by any public officer unless such instrument is duly stamped. However, by virtue of proviso (a) to Section 39 subject to all just exception, the instrument can be admitted in evidence on payment of the duty with which same is chargeable or in case of instrument insufficiently stamped, the amount required to make up such duty and a penalty of Rs.100 or ten times of the amount of deficient portions thereof, whichever is higher. 17. Further, Section 42 which prescribes the procedure to deal with the impounded instrument provides that when the person impounding instrument under Section 37 has by law or consent of the parties authority to receive evidence admits such instrument in evidence upon payment of penalty as provided by Section 39 or the duty as provided by Section 41, he shall send to the Collector an authenticated copy of the instrument together with the certificate in writing, stating the amount of duty and penalty levied in respect thereof and shall send such amount to the Collector or to such a person appointed in this behalf. As per provisions of sub-sec.(2) of Section 41, in all other case, the instrument impounded shall be sent in original to the Collector. However, as per proviso to sub-section (2) of Section 42, a person who produces the instrument, or any party interested is prepared to pay the cost of preparing a copy of the instrument then only such authenticated copy shall be sent to the Collector and then the Collector shall take action on the authenticated copy as if it were instrument original. 18. A conjoint reading of provisions of Section 39, 41 & 42 of the Act makes it abundantly clear that if the respondents/plaintiffs are ready and willing to remit the amount of deficient stamp duty and penalty as provided by proviso (a) to Section 39 of the Act, after payment of such duty and penalty, the document cannot be refused as to be admitted in evidence on account of insufficiency of the stamp duty and only an authenticated copy thereof alongwith a certificate in writing stating the amount of duty and penalty levied and such amount recovered is required to be sent to the Collector (Stamp). However, if the respondents/plaintiffs are not ready to remit the amount of deficient stamp duty and penalty as provided by proviso to Section 39 of the Act then the court has to impound the document not duly stamped and make reference to the Collector for determination of the stamp duty and penalty payable notwithstanding the fact that the respondents/plaintiffs have not expressed their readiness and willingness to pay the deficient stamp duty and penalty. In any case, a document insufficiently stamped is not admissible in evidence even for collateral purposes. 19. For the aforementioned reasons, the orders impugned passed by the court below are not sustainable in the eyes of law and therefore, deserve to be set aside. 20. Accordingly, the petition is allowed. The orders impugned dated 18.9.12 and 18.10.13 are set aside. The court below is directed to decide the application preferred by the petitioners afresh, keeping in view the position of law discussed as above. No order as to costs.