ORDER N. Kumar, J. 1. 1st Defendant in the suit has preferred this petition challenging the order of the Trial Court overruling his objections to the marking of document and directing the plaintiff to pay deficit stamp duty of Rs. 10,43,800/- with penalty of Rs. 5/-. 2. In a suit for specific performance, after framing of issues, the plaintiff entered the witness box and sought to rely on the suit document i.e., agreement of sale dated 07.01.2006. The defendant objected to the marking of this document on the ground it is insufficiently stamped and he also filed an application u/s. 34-A r/w Article 5(e)(i) of the Karnataka Stamp Act, 1957 (here in after referred to as 'the Act') for a direction to the plaintiff to pay stamp duty and penalty on the agreement of sale dated 07.01.2006. 3. After hearing the parties, the trial court proceeded to pass an order on 08.06.2012 setting out the relevant recitals in the agreement of sale regarding delivery of possession of the schedule property thereunder and therefore concluded that the agreement of sale ought to have been stamped like a conveyance under Article 5(i)(e) of the Act. Having found that the agreement is written on a Rs. 200/- stamp paper even when the total sale consideration mentioned therein is Rs. 1,74,00,000/-, the trial court concluded that the duty payable would be Rs. 10,44,000/- and directed the plaintiff to pay deficit duty of Rs. 10,43,800/- and a penalty of Rs. 5/-, relying on a judgment of this Court in K. Govinde Gowda v. Akkayyamma reported in ILR 2011 KARNATAKA 4719. Aggrieved by the said order, 1st defendant is before this Court. 4. Learned counsel for the plaintiff supporting the impugned order argued that the objections regarding marking of the document has been considered by the trial Court while passing the impugned order and thereafter duty and penalty in terms of the impugned order has also been paid and the plaintiff was even permitted to mark the agreement of sale as Ex. P. 1. The case is posted for judgment on 15.04.2014, as such it is not open for the 1st defendant to either to object to marking of the document or imposing duty and penalty either before the Court that passed the impugned order or by way of a writ petition before this Court or before any other forum. P. 1. The case is posted for judgment on 15.04.2014, as such it is not open for the 1st defendant to either to object to marking of the document or imposing duty and penalty either before the Court that passed the impugned order or by way of a writ petition before this Court or before any other forum. It is therefore submitted that no case for interference with the impugned order is made out. In support of the same, the respondent has relied on several judgments of this Court as well as the Apex Court. 5. Chapter 4 of the Act deals with instruments not duly stamped and Section 33 provides for examination and impounding of instruments. The said provision reads as under: 33. Examination and impounding of instruments.--(1) Every person having by law or consent of parties authority to receive evidence, and every person in-charge of a public office, except an officer of police, before whom any instrument, chargeable in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in the State of Karnataka when such instrument was executed or first executed. Provided that- (a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceedings other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898; (b) In the case of a Judge of the High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf. (3) For the purposes of this section, in cases of doubt, the Government may determine.- (a) What offices shall be deemed to be public offices; and (b) Who shall be deemed to be persons in-charge of public offices." \ 6. (3) For the purposes of this section, in cases of doubt, the Government may determine.- (a) What offices shall be deemed to be public offices; and (b) Who shall be deemed to be persons in-charge of public offices." \ 6. Once the document is found to be not duly stamped, Section 34 of the Act places an absolute embargo on its admissibility and it cannot be used for any purpose. However, proviso (a) to Section 34 of the Act provides for payment of duty and penalty on such instrument and Sec. 34 of the Act reads as under: 34. Instruments no duly stamped inadmissible in evidence, etc.--No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped. Instruments no duly stamped inadmissible in evidence, etc.--No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped. Provided that- (a) any such instrument not being an instrument chargeable [with a duty not exceeding fifteen paise] only, or a mortgage of crop Article [35](a) of the Schedule chargeable under clauses (a) and (b) of Section 3 with a duty of twenty-five paise shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion; (b) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped; (c) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII and Chapter XXXVI of the Code of Criminal Procedure, 1898; (d) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government, or where it bears the certificate of the [Deputy Commissioner] as provided by Section 32 or any other provisions of this Act [and such certificate has not been revised in exercise of the powers conferred by the provisions of Chapter VI]. 7. The effect of admission of a document which is not sufficiently stamped is dealt under Section 35 of the Act which reads as under: 35. Admission of instrument where not to be questioned.- Where an instrument has been admitted in evidence such admission shall not, except as provided in Section 58, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. 8. Admission of instrument where not to be questioned.- Where an instrument has been admitted in evidence such admission shall not, except as provided in Section 58, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. 8. Therefore, it is seen that Section 33 provides for examination and impounding of an instrument which is not duly stamped. Once on examination it is found that the instrument is not duly stamped, Section 34 comes into operation and places a complete embargo on the admissibility of such document in evidence. However Section 35 of the Act provides that admission of an instrument not duly stamped or insufficiently stamped, in evidence, rightly or wrongly, shall not be called in question at any stage of the same suit or proceedings on the ground of insufficiency of the stamp duty or that no stamp duty is paid on such an instrument. Therefore provisions of Sections 33 to 35 of the Act cannot be read in isolation and have to be read together. 9. The Apex Court in the case of Javer Chand and Others v. Pukhraj Surana reported in AIR 1961 SC 1655 while interpreting Section 36 of the Indian Stamp Act has held as under: That section is categorical in its terms that when a document has once been admitted in evidence, such admission cannot be called in question at any stage of the suit or the proceedings on the ground that the instrument had not been duly stamped. The only exception recognized by the section is the class of cases contemplated by S. 61, which is not material to the present controversy. Section 36 does not admit of other exceptions. Where a question as to the admissibility of a document is raised on the ground that it had not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the Court rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Section 35 is in the nature of a penal provision and has far-reaching effects. Once the Court rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Section 35 is in the nature of a penal provision and has far-reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the, Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. The record in this case discloses that the fact that the hundis were marked as Exs. P.1 and P.2 and bore the endorsement admitted in evidence under the signature of the Court. It is not, therefore, one of those cases where a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses. S. 36 of the Stamp Act comes in to operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial Court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction. 10. Following the above, the Apex Court in the case of Shyamal Kumar Roy v. Sushil Kumar Agarwal, reported in AIR 2007 SC 637 , while once again dealing with Section 36 of the Indian Stamp Act has held as under: 14. Section 36, however, provides for a 'stand alone' clause. It categorically prohibits a court of law from reopening a matter in regard to the sufficiency or otherwise of the stamp duty paid on an instrument in the event the same has been admitted in evidence. Only one exception has been made in this behalf, viz., the provisions contained in Section 61 providing for reference and revision. It categorically prohibits a court of law from reopening a matter in regard to the sufficiency or otherwise of the stamp duty paid on an instrument in the event the same has been admitted in evidence. Only one exception has been made in this behalf, viz., the provisions contained in Section 61 providing for reference and revision. In a case where Section 33 of the Act, as amended by West Bengal Act would be applicable, the proviso appended to sub-section (5) carves out an exception that if no action would be taken after a period of four years from the date of execution of the instrument". 15. XXXXXXX 16. The said decision, therefore, is an authority for the proposition that Section 36 would operate even if a document has been improperly admitted in evidence. It is of little or no consequence as to whether a document has been admitted in evidence on determination of a question as regards admissibility thereof or upon dispensation of formal proof therefore. It a party to the lis intends that an instrument produced by the other party being insufficiently stamped should not be admitted in evidence, he must raise an objection thereto at the appropriate stage. He may not do so only at his peril. 17. Objections as regards admissibility of a document, thus, specifically required to be taken that it was not duly stamped. On such objection only the question is required to be determined judicially. 18. XXXXXX 19. When there had been no determination as regards sufficiency of the stamp duty paid on an instrument and in the event the document is taken in evidence with an endorsement, that "objected, allowed subject to objection", this Court in Ram Rattan (supra) held that the objection was not judicially determined and the document was merely tentatively marked and in such a situation Section36 would not be attracted. Ram Rattan (supra) also, therefore, is an authority for the proposition that the party objecting to the admissibility of the document must raise an objection so as to enable the trial judge to determine the issue upon application of his judicial mind at the appropriate stage. 20. If no objection had been made by Appellant herein in regard to the admissibility of the said document, he, at a later stage, cannot be permitted to turn round and contend that the said document is inadmissible in evidence. 21. 20. If no objection had been made by Appellant herein in regard to the admissibility of the said document, he, at a later stage, cannot be permitted to turn round and contend that the said document is inadmissible in evidence. 21. Appellant having consented to the document being marked as an exhibit has lost his right to reopen the question. 22. What was necessary was that the document should be marked in presence of the parties and they had an opportunity to object to the marking of the document. The question of judicial determination of the matter would arise provided an objection is taken what document is tendered in evidence and before it is marked as an exhibit in the case. 11. Section 36 of the Indian Stamp Act is in pari materia with Section 35 of the Karnataka Stamp Act. Placing reliance on the ratio laid down by the Apex Court in the decisions cited supra, this Court in the case of H. Krishnappa v. M.D. Ashwathanarayan Singh reported in AIR 2011 KANT 128, has held that if a party to the lis has any objection for production of an insufficiently stamped document by the other party and that it should not be admitted in evidence, he must raise the objection before the document is admitted in evidence. Once the document is admitted, no objection can be raised since, the time of raising objection has passed and Section 35 of the Act comes into operation. If an objection is raised, the Court has a duty to examine the document for the purpose of finding out whether it is sufficiently stamped or not and if it is insufficiently stamped, to impound the same and refer the document to the Deputy Commissioner for necessary action or in the alternative, if the party is willing to pay/deposit the difference of stamp duty and the penalty, to determine the same and upon such payment, to proceed further with regard to the admissibility of the document and the follow up proceedings. 12. In the case of M/s. Cave Caterers Private Limited v. M/s. Sudha Enterprises, reported in ILR 2001 KAR 2017, too a document was introduced in the evidence of D.W. 1 and marked as Ex. D.29 without any objection or opposition, though counsel for the plaintiff side was present before Court and he only sought for time to cross-examine the witness. In the case of M/s. Cave Caterers Private Limited v. M/s. Sudha Enterprises, reported in ILR 2001 KAR 2017, too a document was introduced in the evidence of D.W. 1 and marked as Ex. D.29 without any objection or opposition, though counsel for the plaintiff side was present before Court and he only sought for time to cross-examine the witness. Under such circumstance, it was held that the trial Court denuded of jurisdiction to impound the document Ex. D.29 after its admission in evidence and the plaintiff was disentitled to invoke Section 33 of the Act to seek impounding of Ex. D.29. 13. Reliance is also placed on an unreported judgment of this Court in W.P. 31011/2012 disposed on 29.01.2013 wherein it was held that when an insufficiently stamped document tendered in evidence and marked either by act of the parties or by order of the court, the opponent has the right to raise objection regarding insufficiency of stamp duty at that time. If such an objection is not raised when the document is marked and received as evidence, the opponent will be forfeiting his right to challenge the sufficiency or otherwise of the duty and penalty. 14. From the above, is clear that a statutory duty is cast on the Court to examine the instrument which is tendered in evidence before it is received in evidence, irrespective of a party to the proceedings raising any objections regarding its marking on the ground that it is insufficiently stamped. On such examination if it appears to the Court that such instrument is not duly stamped, it shall impound the same. Once the instrument is held to be not duly stamped and ordered to be impounded, then it is inadmissible in evidence, as there is complete prohibition for admitting such insufficiently stamped document in evidence. When an instrument not duly stamped or insufficiently stamped is tendered in evidence the opposite party has a right to object to the marking of the same. For this purpose it is not necessary for the opposite party to file any application requesting the Court to impound the document and to collect duty and penalty. A mere oral objection at the time of receiving such an instrument as evidence is sufficient. The Court, as observed above, has a duty to examine the document and find out whether it is duly stamped or not. A mere oral objection at the time of receiving such an instrument as evidence is sufficient. The Court, as observed above, has a duty to examine the document and find out whether it is duly stamped or not. However if by inadvertence the Court does not apply its mind, does not examine the document before receiving it in evidence and the opposite party also does not object to the marking of the document or remains absent at the time of marking of the document and the document is marked rightly or wrongly, then the opposite party is precluded from questioning the same at a subsequent stage of the very same proceedings. A person who does not object to the marking of document before it is marked, forfeits his right to raise such objection in the later stages of the proceedings. 15. But, when such objection is raised before marking of the document and on examination the Court holds that the document is inadmissible in evidence being insufficiently stamped or not duly stamped, the proviso (a) to Sec. 34 of the Act comes into operation. It provides for payment of duty chargeable on such instrument or the deficit duty, as the case may be, by the party who is tendering the document together with penalty of TEN times the duty so payable. On such payment of duty and penalty, notwithstanding the fact that the instrument is not duly stamped or insufficiently stamped, it becomes admissible in evidence. 16. The instant case is not a case where the Court has admitted the document without examining the sufficiency or otherwise of the stamp duty payable on the instrument. The Court while passing an order on the defendant's application u/s. 33 and 34 of the Act has applied its mind, examined the document and came to the conclusion that it ought have been stamped as though a conveyance under Article 5(i)(e) since possession is delivered thereunder and that it is insufficiently stamped. The court also directed the plaintiff to pay deficit duty of Rs. 1,43,800/-. The defendant has no grievance so far as this part of the order is concerned. His grievance is only regarding levying of Rs. 5/- as penalty by the trial court relying on the decision in Govinde Gowda's case cited supra. 17. The court also directed the plaintiff to pay deficit duty of Rs. 1,43,800/-. The defendant has no grievance so far as this part of the order is concerned. His grievance is only regarding levying of Rs. 5/- as penalty by the trial court relying on the decision in Govinde Gowda's case cited supra. 17. The contention of the respondent that the question of legality or otherwise of marking the document cannot be gone into in these proceedings or that the petitioner is estopped from challenging the admissibility of the document in these proceedings is without any substance. Because, objections as to marking of the document can be raised only once and when it is so raised, the Court is duty bound to determine the same. On determination of the same if the party is aggrieved by the order, he can challenge it. Mere marking of the document before the order is challenged, by itself does not take away the right of the party either to challenge the order or challenge the proceedings in which such an order is passed. Marking of the document pursuant to the impugned order is subject to the result of the proceedings in which it is challenged. 18. A Division Bench of this Court in the case of Digambar Warty and Others v. District Registrar, Bangalore Urban District, Bangalore and Another reported in [2013 (4) KAR L.J. 247] had an occasion to consider the power of the Court to reduce the penalty payable under Section 34 of the Act. After referring to the judgment of the Division Bench directly on the point and also various other judgments, this court while overruling the judgment rendered by the single Bench in Govinde Gowda's case has held as under: 59. Section 39 of the Act deals with the power of the Deputy Commissioner to stamp the instruments. After referring to the judgment of the Division Bench directly on the point and also various other judgments, this court while overruling the judgment rendered by the single Bench in Govinde Gowda's case has held as under: 59. Section 39 of the Act deals with the power of the Deputy Commissioner to stamp the instruments. When he impounds the instrument under Section 33 or he receives any instrument sent to him under Sub-section (2) of Section 37, if he is of the opinion that the instrument chargeable with duty or is not duly stamped, he shall require the payment of the proper duty or the amount required to make up the same, together with a penalty of Rupees Five or 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. Here again, the discretion is conferred on the Deputy Commissioner to impose a penalty less than ten times the duty payable. Therefore Section 38 and Section 39 of the Act, confers power on the Deputy Commissioner to levy penalty on an insufficiently stamped instrument or an instrument which is not stamped at all, less than ten times the penalty payable thereon under Section 34 of the Act. However, the said discretion conferred on the Deputy Commissioner should be exercised in a judicious manner. He will be exercising a quasi judicial power. Therefore, he has to take into consideration the facts of the case, the circumstances under which the instrument is executed, the reason given either for not paying stamp duty or for payment of insufficient duty on such instrument and other attendant circumstances and then in his discretion can reduce the penalty payable....... And with reference to Sections 33, 34, 35, 36 and 37 of the Stamp Act, it was held as under: 39. Section 38 of the Act deals with the power of the Deputy Commissioner to refund the penalty paid under Sub-section (1) of Section 37. When a copy of an instrument is sent to the Deputy Commissioner under Sub-section (1) of Section 37, he may, if he thinks fit, refund any portion of the penalty in excess of five rupees which has been paid in respect of such instrument. When a copy of an instrument is sent to the Deputy Commissioner under Sub-section (1) of Section 37, he may, if he thinks fit, refund any portion of the penalty in excess of five rupees which has been paid in respect of such instrument. The reason being, when a person receiving the evidence impounds the document and collects the duty under Section 34 of the Act, which in most of the cases, is the Civil Court, the time of the Court should not be wasted in deciding, whether it is a fit case where penalty of ten times the duty is to be levied or a case is made out for imposition of lesser penalty. Therefore, the Legislature consciously has used the word, 'shall' taking away any discretion in the Civil Court in the matter of imposition of penalty equal to ten times the duty payable. However, the Civil Court after impounding the document, collecting the duty and penalty, is under a statutory obligation to send it to the Deputy Commissioner under Sub-section (1) of Section 37. Therefore, when such an instrument is so sent to the Deputy Commissioner, he has been conferred the power to reduce the penalty already paid before the Civil Court. One of the reasons why such discretion is not vested with the Civil Court is, it is the revenue authorities who are more concerned with the collection of revenue, and that is not the job of the Civil Courts. However, if a document which is not stamped or insufficiently stamped is tendered in evidence in Civil Court and admitted in evidence, then the very purpose of the Stamp Act itself would be defeated. Therefore, a power is vested in Civil Court to impound the document. In fact, it is an obligation cast on the Civil Court by the statute. But, the legislature does not want to burden the Civil Court to go into the question, whether a case for payment of lesser penalty is made out or not. The Civil Courts cannot be expected to be wasting their precious judicial time in deciding matters which exclusively fall within the sphere of revenue authorities and under the scheme of the Act, which has to be decided by them. The Civil Courts cannot be expected to be wasting their precious judicial time in deciding matters which exclusively fall within the sphere of revenue authorities and under the scheme of the Act, which has to be decided by them. Therefore, it prescribes that after determining the duty payable on such instrument, to collect the duty with ten times penalty and then transmit the document to the Deputy Commissioner with duty and penalty so collected. Thereafter, a power is conferred on the Deputy Commissioner under Section 38 of the Act to hold an enquiry after giving an opportunity to the person who has paid duty and penalty to extend the benefit of reduction of penalty. Such a reduction in penalty is available to both the documents i.e., tendered before the Civil Court or produced directly before the Deputy Commissioner under Section 33. No discrimination in law is made between these two types of documents. However, there appears to be some conflicting opinion in this regard. 19. Therefore, the impugned order imposing a penalty of Rs. 5/- cannot be sustained being wholly illegal and without jurisdiction. The Civil Court has no jurisdiction to impose a penalty less than 10 times and the penalty payable on the agreement of sale dated 07.01.2006 is therefore 10 times the duty found to be deficit by the trial court. Thus, the impugned order requires to be set aside only to the extent of imposing penalty of Rs. 5/-. 20. The case is now set down for judgment. If the plaintiff wants the Trial Court to look into Ex. P1, the agreement of sale, he has to pay ten times the deficit duty as penalty on the said document. The Court can look into it only if the same is paid. Else, for all practical purposes though marked, the document is deemed to be un-exhibited document in law. 21. In the result I pass the following: ORDER (a) Writ Petition is allowed. (b) The impugned order imposing a penalty of Rs. 5/- is hereby set aside. (c) The plaintiff shall pay penalty of Rs. 1,43,80,500/- before 15.4.2014 and only on such payment, the Court shall proceed to pass judgment by considering Ex. P1, otherwise Ex. P1 has to be excluded. Petition allowed