ORDER : LALITHA KANNEGANTI, J. Aggrieved by the order passed in I.A.No.V in O.S.No.4641/2016 dated 29.11.2018 passed by the LXIII Additional City Civil & Sessions Judge (CCH-64), Bengaluru City, the petitioner/defendant is before this Court. 2. The respondent/plaintiff had filed the suit against the petitioner/defendant seeking the relief of recovery of money. I.A.No.V is filed by the defendant under Section 151 of CPC read with Sections 33 and 35 of Karnataka Stamp Act, 1957 , for impounding the Unstamped Memorandum of Understanding produced by the plaintiff as Ex.P4. It is stated that during the course of marking of the documents, the trial Court without considering the objection raised by the defendant has marked the Unstamped Memorandum of Understanding as Ex.P.4. It is also stated that even though the Memorandum of Understanding is only for the purpose of understanding between the parties, the amount mentioned in the said document clearly goes to show that there is a contact between the parties with regard to offer and acceptance of the immovable property. It is stated that the part consideration of sum of Rs.50,00,000/- has already been paid to the owner of the property and therefore, the document to be admissible in evidence has to be stamped under the provision of the Karnataka Stamp Act, 1957 . 3. The trial Court had dismissed the said application and while dismissing the application, the trial Court had observed that the document Ex.P4 is marked by the Court in the presence of the counsel appearing for the defendant and at the time of marking of the said document, absolutely there was no objection from the other side, but very strangely the defendant in his affidavit filed in support of the application has stated that the trial Court had not considered the objection in respect of marking of the unstamped Memorandum of Understanding as Ex.P4. The trial Court observed that while marking the said document, there was no objection by the other side. Further, considering Section 35 of the Karnataka Stamp Act, the Court had observed that once an instrument is marked and admitted in evidence that shall not be questioned at any stage of the said suit or proceedings on the ground that the instrument has not been duly stamped, except as provided under Section 58 of the Act. Further, considering Section 35 of the Karnataka Stamp Act, the Court had observed that once an instrument is marked and admitted in evidence that shall not be questioned at any stage of the said suit or proceedings on the ground that the instrument has not been duly stamped, except as provided under Section 58 of the Act. There is a finding that the present suit of the plaintiff is for recovery of money from the defendant, but not based on Ex.P4. Ex.P4 is produced by the plaintiff to show the conduct of the defendant as per the say of the plaintiff. The transfer of the amount mentioned in Ex.P4 is in respect of the transaction between the defendant and one Smt.Shobha Ratnam and Smt.Rupa Narendran in respect of an agreement of sale dated 13.06.2014, entered into between them and that is not the subject matter of this suit. Therefore, I.A.No.V cannot be allowed and accordingly dismissed the same. 4. Learned counsel appearing for the petitioner/ defendant submits that when the defendant raised an objection with regard to the unregistered document i.e., Memorandum of Understanding, still the same was marked as Ex.P4. It is submitted that the trial Court has not followed the procedure while marking the unregistered/unstamped document as contemplated under the Act. Learned counsel for the petitioner had relied on the judgment of Co-ordinate Bench of this Court, in case of Smt. Savithramma R.C. Vs. M/s. Vijaya Bank and Another , ILR 2015 Kar.1984 relied on Para No.6, 7 and 8 which reads as follows: “6. From the aforesaid statutory provisions and the decisions, it is clear that a duty is cast upon every Judge to examine every document, which is produced or comes before him in the performance of his functions. On such examination, if it appears to the Judge that such instrument is not duly stamped, an obligation is cast upon him to impound the same. This duty is to be performed by the Judge irrespective of the fact whether any objection to its marking is raised or not. Hence, there is a need for diligence on the part of the Court having regard to the statutory obligation under Section 33 of the Karnataka Stamp Act. Section 34 of the Karnataka Stamp Act mandates that an instrument, which is not duly stamped shall not be admitted in evidence. Hence, there is a need for diligence on the part of the Court having regard to the statutory obligation under Section 33 of the Karnataka Stamp Act. Section 34 of the Karnataka Stamp Act mandates that an instrument, which is not duly stamped shall not be admitted in evidence. If any objection is taken to the admissibility of the evidence, it shall be decided then and there. If this document is found to be insufficiently stamped, then in terms of the proviso (a) to Section 34 , the Court shall call upon the person, who is tendering the said document to pay duty and ten times penalty and thereafter admit the document in evidence. If duty and penalty is not paid, the document shall not be admitted in evidence. If such an objection is not taken at the time of admitting the said instrument in evidence, and the insufficiently stamped document is admitted in evidence then Section 35 of the Act provides that such admission shall not be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. It has nothing to do with impounding the document. A duty is cast upon every Judge to examine every document that is sought to be marked in evidence. The nomenclature of the document is not decisive. The question of admissibility will have to be decided by reading the document and deciding its nature and classification. The tendency to mark documents without inspection and verification should be eschewed. Even while recording ex parte evidence or while recording evidence in the absence of the Counsel for the other side, the Court should be vigilant and examine and ascertain the nature of the document proposed to be marked and ensure that it is a document which is admissible. The Court should not depend on objections of the other Counsel before considering whether the document is admissible in evidence or not. Section 33 of the Stamp Act casts a duty on the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not. Section 33 of the Stamp Act casts a duty on the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not. Section 37 of the Act provides what the Judge has to do when he has collected duty and penalty under Section 34 of the Act and what he has to do, if the case does not fall under Section 34 of the Act. Section 37 of the Karnataka Stamp Act reads thus: 37. Instruments impounded how dealt with.- (1) 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 34 or of duty as provided by section 36, he shall send to the Deputy Commissioner an authenticated copy of such 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 Deputy Commissioner or to such person as he may appoint in this behalf (2) In every other case, the person so impounding an instrument shall send it in original to the Deputy Commissioner. 7. If the Judge has acted under Section 34 of the Act and collected duty and penalty and admitted the document in evidence, then under sub-Section (1) of Section 37 , he shall send to the Deputy Commissioner an authenticated copy of such 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 Deputy Commissioner or such person as he may appoint in this behalf. If the Judge does not act under Section 34 of the Act, but the document is insufficiently stamped and admitted in evidence though objection regarding admissibility cannot be raised subsequently that does not take away his obligation to impound the document under Section 33 of the Act. If the document is insufficiently stamped and if the Court has admitted such instrument in evidence without collecting duty and penalty, then the Judge shall proceed under Section 33 of the Act and impound the document. If the document is insufficiently stamped and if the Court has admitted such instrument in evidence without collecting duty and penalty, then the Judge shall proceed under Section 33 of the Act and impound the document. After impounding the document, he shall proceed under Section 37 (2) of the Act and shall send the impounded instrument in original to the Deputy Commissioner to be dealt with under Section 39 of the Act. Therefore, impounding the document should not be confused to admission of document without objection regarding admissibility or on such objection being taken after collecting the duty and penalty. 8. In the instant case, though the Trial Court has said that the documents are duly stamped, it has not discussed about the nature of the documents in order to find out whether it is duly stamped. Only after the said exercise, the Trial Court could have come to the conclusion whether the duty paid on the instrument is sufficient or not. Therefore, the Trial Court is directed to undertake the above exercise and pass appropriate orders and to proceed under Section 33 of the Act read with Section 37 (2) of the Stamp Act, if the documents are found to be insufficiently stamped.” 5. Learned counsel had also relied on the judgment in case of Digambar Warty and Others Vs. District Registrar, Bangalore Urban District and Another , 2013 (4) Kar.L.J. 247 (DB) on paragraph Nos.58 and 59 which reads as follows: “58. In view of the aforesaid judgment of the Apex Court, it is clarified that the observations made in the judgment in K. Govinde Gowda's case should neither be treated as binding by the Learned Single Benches of High Court or Sub-ordinate Courts and other judicial for as nor should that order be relied upon or made basis, for bypassing the principles laid down in the case of J.S. Paramesh, by the Division Bench of this Court. 59. Section 39 of the Act deals with the power of the Deputy Commissioner to stamp the instruments. 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. The said order reducing the penalty should not be arbitrary and whimsical, as otherwise it may give scope for abuse of such power and the very intention of the Legislature enacting the provision for penalty would be defeated. Therefore, merely because the Deputy Commissioner has been conferred under the statute the power to levy duty less than 10 times, such a power cannot be exercised mechanically without application of mind and without assigning reasons for such reduction. That would serve the object with which this penalty provision is introduced in the Act, which in fact is in the nature of terrorem, so that the duty payable on the instruments are properly paid and the attempt to avoid payment of requisite duty is discouraged. That would serve the object with which this penalty provision is introduced in the Act, which in fact is in the nature of terrorem, so that the duty payable on the instruments are properly paid and the attempt to avoid payment of requisite duty is discouraged. Section 67-A of the Act provides that when the Deputy Commissioner adjudicates the duty payable on such instrument, there is an obligation cast on him to give a reasonable opportunity to be heard, to such person who is liable to pay duty.” 6. Learned counsel appearing for the respondent/ plaintiff submits that once a document is admitted in evidence, it is not open to either of the parties as well as to the Court to review the said order. He had relied on the judgment of the Hon’ble Apex Court in Sirikonda Madhava Rao Vs. N. Hemalatha And Others , 2022 LiveLaw (SC) 970 and the judgment in case of Shyamal Kumar Roy Vs. Sushil Kumar Agarwal , (2006) 11 SCC 331 on paragraph Nos. 14, 15 and 16 which reads as follows: “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. 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. The agreement, as notice hereinbefore, was executed in the year 1995. The applications purported to be under Section 151 of the Code of Civil Procedure, 1908 were filed by Appellant only on 16.2.2005. The Development Agreement, as noticed hereinbefore, was admitted in evidence on 17.2.2003. The learned Trial Judge as also the High Court relied upon a decision of this Court in Javer Chand (supra). The applications purported to be under Section 151 of the Code of Civil Procedure, 1908 were filed by Appellant only on 16.2.2005. The Development Agreement, as noticed hereinbefore, was admitted in evidence on 17.2.2003. The learned Trial Judge as also the High Court relied upon a decision of this Court in Javer Chand (supra). An attempt to distinguish the said decision of this Court was made, inter alia, on the premise that therein this Court was concerned with interpretation of the provisions of Marwar Stamp Act, 1947 in respect of two mudatti hundis, which have been admitted in evidence on payment of duty and penalty, but sought to be made inadmissible in evidence in terms of the provisions contained in the 1947 Act. This Court opined that once the said document was admitted in evidence, the new Act i.e. the 1947 Act would be inapplicable, stating : "Once 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, Section 36 of the Stamp Act comes into 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." 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 therefor. If 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.” 7. Learned counsel for the respondent further relied on the judgment in case of Javer Chand and Others Vs. He may not do so only at his peril.” 7. Learned counsel for the respondent further relied on the judgment in case of Javer Chand and Others Vs. Pukhraj Surana , AIR 1961 SC 1655 which reads thus: “In our opinion, the High Court misdirected itself, in its view of the provisions of s. 36 of the Stamp Act. Section 36 is in these terms:- "Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped." 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 proceeding on the ground that the instrument had not been duly stamped. The only exception recognised 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 has not been stamped, or has not been properly stamped, it has to be decided then and there when the (1) I.L.R. [1953] Raj. 833. 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. Parties to a litigation, where such a controversy is raised, have to be circumspect and the 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 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 inadvertently admitted, without the Court applying its mind to the question of its admissibility. The record in this case discloses 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 inadvertently admitted, without the Court applying its mind to the question of its admissibility. Once 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 into 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.” 8. He had also relied on M/s. Cave Caterers Private Limited Vs. M/s. Sudha Enterprises , ILR 2011 KAR 2017 and further relied on the case of K.S. Harikumar Vs. D.S Lalithamma And Others arising out of WP No.12735/2019 dated 16.10.2024 , in which paragraph Nos.9 and 10 reads thus: “9. On reading of Section 58 of the Karnataka Stamp Act, it is very much apparent even in case the document is inadvertently admitted in evidence without imposing penalty and collecting the deficit stamp duty, said order has to be questioned by filing the revision before the Court where the appeal lies from the orders passed by the Court. 10. This Section 58 does not empower the Court which has already admitted the document in evidence to recall the said order. Section 35 comes in the way.” 9. Having heard the learned counsels on either side, perused the entire material on record. Before considering the submissions of either of the parties, it is appropriate to look at the case of the plaintiff. The suit is filed for recovery of money. The defendant had entered into an agreement for purchase of the property from the owners namely Smt.Roopa Narendra and her sister Shobha Ratnam dated 13.06.2013. Before considering the submissions of either of the parties, it is appropriate to look at the case of the plaintiff. The suit is filed for recovery of money. The defendant had entered into an agreement for purchase of the property from the owners namely Smt.Roopa Narendra and her sister Shobha Ratnam dated 13.06.2013. The defendant had already paid an amount of Rs.50 Lakhs as advance and intended to sell/transfer the same to the plaintiff and the plaintiff after accepting the said offer has agreed to purchase the same for a total consideration of Rs.10 Crores from the defendant who is the agreement holder for the property. The defendant had assured the plaintiff that he shall take all the responsibility to get the Sale Deed executed by Smt.Roopa Narendra and Shobha Ratnam once they are available. As a token of their consent, an amount of Rs.50 Lakhs transferred by the plaintiff into the account of Smt.Roopa Narendra has been accepted by her. In furtherance of the aforesaid payment, the defendant being the agreement holder for the schedule property from Smt.Roopa Narendra has agreed to get the aforesaid property registered in the name of the plaintiff. The defendant represented that Smt.Roopa Narendra and Shobha Ratnam have no objection for entering into this Memorandum of Understanding with plaintiff in respect of the property. The parties to the MOU undertake that the entire transaction under the Memorandum of Understanding shall be completed within a total period of six months. The defendant apart from persuading the plaintiff to part with the sum of Rs.50,00,000/- (Fifty Lakhs) in favour of Roopa Narendra on the pretext of getting the Sale Deed executed in respect of the aforesaid property in question in favour of the plaintiff in terms of the Memorandum of Understanding dated 05.07.2013, he also persuaded the plaintiff to part with a sum of Rs.20 Lakhs as hand loan to meet some financial emergency. The plaintiff paid a sum of Rs.20 Lakhs by cash to the 1 st defendant on 08.10.2013 with a promise by the 1 st and 2 nd defendant that he would repay the said sum of Rs.20 Lakhs within 90 days from the date of receipt of the said amount. 10. The cash payment voucher dated 08.10.2013 and the receipt issued by the 1 st defendant for payment received dated 08.10.2013 are produced and marked as documents 2 and 3. 10. The cash payment voucher dated 08.10.2013 and the receipt issued by the 1 st defendant for payment received dated 08.10.2013 are produced and marked as documents 2 and 3. After the payment as neither the defendant nor Roopa Narendra came forward to fulfill their commitment as promised and committed under the MOU dated 05.07.2013 nor the defendant came forward to repay the aforesaid sum of Rs.20 Lakhs. The plaintiff had filed a separate suit for recovery of the aforesaid sum of Rs.50 Lakhs with interest from the defendant and Roopa Narendra. 11. It is stated in the plaint that the suit is filed for recovery of an amount of Rs.20,00,000/-. The cause of action for the suit arose on 08.10.2013 when the defendant received Rs.20,00,000/- by executing cash voucher and receipt subsequently on 02.07.2014 when the demand was made by the plaintiff under the said letter. 12. The plaintiff had filed objections to the I.A. stating that in respect of Rs.50,00,000/- which is in respect of the MOU, already a separate suit is filed by the plaintiff and now the cause of action for this suit is the cash voucher and transfer of Rs.20,00,000/-. Further, the MOU is not a contract between the original owner of the property and the plaintiff but only a document created to establish the payment of Rs.50,00,000/- through a third party on the assurance of the defendant. The MOU has no significance as the recovery of money of Rs.20 lakhs is only the issue and only to drag on the proceedings, the suit is filed. 13. This Court has perused the order. The part one of the order discusses that no objection was raised while the document was marked. According to the defendant, inspite of their objection, the Trial Court had marked the document. Coming to the second part of the order, the trial Court had observed that Memorandum of Understanding is not the basis for this suit which is filed for recovery of money. The suit is filed basing on the money that is given by the plaintiff to the defendant by executing a cash voucher and receipt. The Court had given a finding that even on that count, the said document is not subject matter of the suit and dismissed the petition. The suit is filed basing on the money that is given by the plaintiff to the defendant by executing a cash voucher and receipt. The Court had given a finding that even on that count, the said document is not subject matter of the suit and dismissed the petition. Once a particular document is sought to be marked, it is for the Court to see whether such a document can be admitted in evidence, whether the document is sufficiently stamped, whether it is registered or not. If it is insufficiently stamped document, the Court has to pass necessary orders by fixing the stamp duty and penalty. In this case, the Court went on a premise that no objection is raised by the defendant. There is no dispute about the proposition of law that a document which is admitted and marked in evidence cannot be questioned at a later point of time. This Court in Smt.Savithramma R.C. ’s case referred supra has observed that a duty is cast upon the Judge to examine every document and if it is not duly stamped, it is the obligation to impound them. The Court has also observed that even after the document is admitted, still the Court can consider and collect the deficit stamp duty and penalty. In the light of the law laid down in the above judgment, the first part of the order that no objection is raised by the defendant cannot be sustained. Then coming to the second part of the order, Ex.P.4 is an unstamped and unregistered document. Even if it has to be looked into for the collateral purpose also unstamped document cannot be looked into. In that view of the matter, even the second part of the order also needs to be set aside. Hence, this Court is passing the following order: ORDER i. The order passed in I.A.No.V in O.S.No.4641/2016 dated 29.11.2018 passed by the LXIII Additional City Civil & Sessions Judge (CCH-64), Bengaluru City is set aside and the matter is remanded back to the trial Court for fresh consideration. ii. The trial Court shall decide the deficit stamp duty and penalty after giving an opportunity to both the parties. iii. The application shall be disposed off within two months from the date of receipt of copy of the order. iv. Accordingly, the writ petition is allowed v. All I.As. in this petition shall stand closed.