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2017 DIGILAW 1188 (MP)

Manoj Trading Co. v. Shakir Khan

2017-11-20

VIVEK AGARWAL

body2017
ORDER 1. These writ petitions are being decided by this common order. Facts are being taken from Writ Petition No. 2800/17. 2. Petitioner has filed this petition under Article 227 of the Constitution of India being aggrieved by order dated 6.4.2017 passed by the 1st Civil Judge, Class II, Karera, District Shivpuri. 3. It is the contention of petitioner that he is defendant before the trial Court and had raised objection as to the admissibility of a document which has been enclosed by him as Annexure P-6. On such objection being raised by the petitioner, trial Court went on to determine the duty and imposed ten times penalty. It is the contention of learned counsel for the petitioner that such course was not open to the trial Court and the matter should have been necessarily referred to the Collector of Stamps. 4. Learned counsel for the respondent on the other hand submits that section 33 of the Indian Stamp Act, 1899 provides for examination and impounding of instruments and in terms of the provisions contained in section 33(1) Court being a person having by law authority to receive evidence had jurisdiction to impound the document and thereafter was required to act in terms of the provisions contained in section 38. Section 38(1) provides that when the person impounding an instrument under section 33 has by law or consent of parties authority to receive evidence and admits such instrument in evidence upon payment of a penalty as provided by section 35 or of duty as provided by section 37, he shall send to the Collector a authenticated copy of instrument, together with a 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 person as he may appoint in this behalf. He submits that in fact there were two courses open to the Court, namely admission of instrument on payment of duty and penalty under sub-section (1) and send copy only together with a certificate in writing stating the amount of duty and penalty levied in respect thereof along with the amount to the Collector, or (2) send the impounded instrument to the Collector for further action. In the present case, the party on which penalty has been imposed is the plaintiff which is respondent before this Court, therefore, as far as petitioner's contention is concerned that only course open to the Court was to send the impounded instrument to the Collector for further action is not correct, but at the same time, the Court was required not only to ascertain the duty and penalty under sub-section (1) of section 38, but was also required to send copy together with a certificate in writing stating the amount of duty and penalty levied in respect thereof alongwith the amount to the Collector. Thus, there are two distinct and composite acts; one is to admit the instrument on payment of duty and penalty under sub-section (1) and send its copy alongwith a certificate in writing and the second course is to send the impounded instrument to the Collector for further action. 5. As far as the argument of learned counsel for the petitioner is concerned that Court should have necessarily impounded the instrument and forwarded it to the Collector, that course was open to the plaintiff because he would have been an aggrieved party with the levying of penalty and he could have raised this issue that instead of determining duty and levying penalty, the instrument be impounded and be sent to the Collector for further action, but this is not open to the petitioner/defendant. However, in the opinion of this Court, the trial Court has faulted in not acting compositely while passing the impugned order inasmuch as it was expected of the trial Court not only to ascertain the duty and penalty under sub-section (1) of section 38, but should have sent copy of such ascertainment of duty and penalty with a certificate in writing stating the amount of duty and and penalty levied in respect thereof along with the amount to the Collector. As has been mentioned above, these acts are to be constituted as a composite act and should form a chain of the events and to this extent the order of the trial Court is faulted. In the opinion of this Court, trial Court was having jurisdiction under section 33 to ascertain deficit duty and also the quantum of penalty, but it should have also sent a certificate in writing which it has not done. To this extent the order appears to be faulty. In the opinion of this Court, trial Court was having jurisdiction under section 33 to ascertain deficit duty and also the quantum of penalty, but it should have also sent a certificate in writing which it has not done. To this extent the order appears to be faulty. At this stage, Shri Bansal submits that it is not clear that whether such certificate has been sent by the trial Court to the Collector or not. In view of such submission, it is directed that if such certificate has not been forwarded to the Collector as is mandated under the provisions of section 38(1), then the trial Court is obliged to comply with that and the order in absence of such transmission to the Collector will be a nullity. Therefore, it is directed that if the duty and penalty certificate has been forwarded to the Collector of Stamps, then the impugned order shall stand, failing which the impugned order shall be nullity and the trial Court shall be free to pass a fresh order. In above terms, all the writ petitions are disposed of.