ORDER Since common questions of law and that of fact arise for decision making, with the consent of the learned Counsel for the parties, petitions are clubbed together, finally heard and disposed of by this order. 2. The lis brought before Court lies in a narrow compass. Petitioner in W.P. Nos. 57968-969/2013 is the Financial Corporation (‘KSFC’ for short) arraigned as defendant No.1 in O.S. No. 56/2010 on the file of II Additional Senior Civil Judge, Mangaluru, instituted jointly by 2nd respondent Nos.1 to 3 arraigning 4th respondent as defendant for the relief of damages, recovery of monies paid as OTS and for return of original title deeds, which was opposed by filing written statement denying the allegations. W.P. Nos. 57692-693/2013 are filed by the defendant aggrieved by the rejection of I.A. Nos. 9 and 10, while W.P. Nos. 57968-969/2013 are filed aggrieved by the rejection of I.A. Nos. 11 and 12 in O.S. No. 56/2010, by common order dated 02.12.2013. 3. On 13.06.2013, the examination-in-chief of P.W.1 when recorded, counsel for petitioner in W.P. Nos. 57692-693/2013, opposed marking the unregistered agreement of sale, dated 15.02.2011, which objection though recorded, nevertheless was marked Ex.P.22. Before the cross-examination of this witness, petitioner/defendant No.2 filed I.A. Nos. 9 and 10 under Sections 33 and 37 of the Karnataka Stamp Act, 1957 (‘the Act’ for short) to impound the registered agreement of sale Ex.P.22, while petitioner KSFC filed I.A.Nos.11 and 12 under Sections 33 and 37 of the Act to impound the registered usufructuary mortgage deed and sale deed marked as Exs.P.23 and 24 respectively, on the allegation that they were insufficiently stamped and for determination of deficit stamp duty, and penalty. Those applications were opposed by filing statement of objections on the premise that Ex.P.22 was sufficiently stamped, while Exs.P.23 and 24 duly registered, and the Sub Registrar certified the stamp duty paid, hence, impounding did not arise; that the documents were produced along with an application for which defendants had no objection; the application to produce the documents was allowed without objection; defendants had full knowledge of the nature of the documents and remained silent while marking; objection on stamp duty when not raised prior to marking, is unsustainable; in terms of Section 35 of the ‘Act’, documents once marked rightly or wrongly, question of impounding does not arise. 4. 4. The II Additional Senior Civil Judge, Mangaluru, D.K. having considered I.A. Nos. 9 and 10 filed by the 2nd defendant and I.A. Nos. 11 and 12 filed by defendant No.1/ KSFC, by common order dated 02.12.2013, rejected the applications on the following premise: Ex.P.22, admittedly is an unregistered agreement of sale, dated 15.02.2011, engrossed on stamp paper of value Rs. 200/- indicating a total sale consideration of Rs. 1,05,00,000/- for conveyance of the immovable property, jointly executed by plaintiffs in favour of Muliya Keshav Prasad and Muliya Krishna Narayana; that the covenants in the sale agreement do not disclose delivery of possession of the property by way of part performance while in clause (2) it is specifically covenanted that possession of the immovable property would be delivered within one year thereof with the execution of the sale deed; Article 5(e)(ii) of the schedule to the ‘Act’ provides for rate of duty payable at Rs. 0.25 for every Rs. 100/- of the consideration in the agreement and accordingly the same is Rs. 26,250/- and deducting Rs. 200/-, the balance duty payable was Rs. 26,050/- while penalty being ten times the said duty, was Rs. 2,60,500/-; the reported opinion of a Division Bench of this Court in Digambar Warty and others vs. District Registrar, Bangalore Urban District and Another, ILR 2013 KAR 2099 was held to be inapplicable to the facts of the case, more appropriately, since Ex.P.22 was admitted in evidence despite objection to its marking by the defendant; and further that the stamp duty payable on Ex.P.22 is under Article 5(j) of the ‘Act’; and accordingly declined to impound Ex.P.22; as regards Exs.P.23 and 24, the Court below observed that both the documents were registered instruments with duty as certified by the Sub-Registrar under the ‘Act’ and hence not qualifying for impounding. 5. On 13.06.2013, when P.W.1 was examined, petitioner’s objection to marking the agreement of sale dated 15.02.2011 as Ex.P.22 was recorded thus: “XXX XXX XXX” 6. In the light of the aforesaid objection recorded by the Court below while recording the oral testimony of P.W.1, it is futile on the part of the plaintiff to contend that there was no objection and even if there was one, it was not on the allegation of insufficient stamp duty and further once the document is marked as Ex.P.22, rightly or wrongly, the question of impounding does not arise. The moment objection is made to mark the agreement of sale as Ex.P.22, duty is cast on the Trial Court in terms of Sections 33 to 35 of the ‘Act’ to ascertain as to whether the stamp duty affixed on the agreement is sufficient and if not, to impound the document, determine the deficit stamp duty and penalty, collect the same and thereafter admit it in evidence and not until then. In the instant case, petitioner’s objection, as recorded, even before marking the agreement of sale as Ex.P.22, that statutory duty on the part of the Trial Court was not performed. In that view of the matter, the Trial Court was not justified in rejecting the contention of the petitioner/2nd defendant that the sale agreement dated 15.02.2011 required a consideration over whether it was sufficiently stamped with duty. 7. Article 5(e) of the schedule to the ‘Act’ provides for agreement of sale of immovable property while clause (i) provides for rate of stamp duty payable on document in which possession of the immovable property, subject matter of sale, is delivered to the purchaser, while, clause (ii) provides for a different rate of stamp duty payable on document in which part performance of the contract is not performed, on the date of the agreement. In the light of the aforesaid provision relating to incidence of stamp duty, in the matter of agreement for sale of immovable property, the Court below was not justified in recording a finding that Article 5(j) applies. In fact, Article 5(j) applies to documents of transactions for which no provision is made under the ‘Act’. Having noted the specific provision of Article 5(e)(i) and (ii), the Court below fell in serious error in understanding the law and its applicability. 8. As regards Exs.P.23 and 24 being the usufructuary mortgage and the sale deed, respectively, admittedly are instruments duly registered, after verifying and certifying requisite stamp duty paid thereon in compliance with the ‘Act’ by the registering authority, and therefore, the question of impounding them at the instance of petitioner/‘KSFC’ on the allegation of insufficiency of duty does not arise and justifiably the Court below rejected the plea by dismissing I.A. Nos. 11 and 12. 9. 11 and 12. 9. It is pointed out by learned counsel for plaintiffs that Ex.P.24 is the registered sale deed which bears the stamp duty on the entire sale consideration for conveyance, in terms of the schedule to the ‘Act’ and therefore, what was required to be paid as stamp duty on the agreement of sale is paid on the registered sale deed. According to the learned counsel the stamp duty paid on the agreement of sale is adjusted towards duty payable on the execution of the conveyance deed and if so done, then it cannot be said that the plaintiffs have not paid the stamp duty. 10. Incidence of payment of stamp duty on the agreement of sale in accordance with Article 5(e)(ii) of the ‘Act’ is on the date of agreement of sale i.e., 15.02.2011. Admittedly it was not paid, but did so, on the execution of the conveyance deed, therefore determining the deficient duty payable on the agreement of sale and recovery of the same will be double jeopardy hence, plaintiff will have to pay penalty at ten times the amount of duty short paid. This aspect of the matter is not considered by the Court below. 11. In the circumstances, there is a need to direct the Court below to consider I.As.9 and 10, afresh. 12. In the result, W.P. Nos. 57692-693/2013 are allowed in part. The common order impugned, in so far as it relates to rejection of I.A. Nos. 9 and 10 is held to be illegal occasioning miscarriage of justice. The objection of the 2nd defendant over admissibility of the agreement of sale dated 15.02.2011 is upheld and the proceeding is remitted to consider I.As. 9 and 10 filed by 2nd defendant in so far as it relates to impounding and determination of penalty on Ex.P.22 and to pass orders in accordance with law and in the light of what is stated supra. On the determination of penalty at ten times the deficit stamp duty, the plaintiffs are directed to pay the penalty amount, whereafter the Trial Court to forward the same together with the original of the agreement of sale to the Deputy Commissioner for an adjudication under Section 38 of the ‘Act’, to extend the benefit of reducing the penalty, following the observations in Digambar Warty’s case supra. W.P. Nos. 57968-969/2013 are rejected.