The judgment of the Court was as follows:—
1. After hearing the learned Counsel for the parties and after going through the explanation given herein I am convinced that the petitioners were prevented by sufficient cause from preferring C.O No. 52 of 2002 within the period of limitation. I thus condone the delay. Application is allowed.
2. No costs.
3. These two revisional applications are at the instance of plaintiffs and are directed against Order Nos. 55, 56, 57, 58, 59, 60, 62 and 63 passed by the learned Civil Judge, Senior Division at Sealdah in title Suit No. 107 of 1996. By Order No. 55, the learned trial Judge directed that the deed of agreement for sale and all purported money receipts appearing on the reverse page of the agreement should be impounded and the sheristadar of the Court was directed to assess such amount and submit a report.
4. After several adjournments, the Court by Order No. 61 dated August 10, 2001 accepted the report of the sheristadar thereby holding that the stamp duty and the penalty for the agreement for sale filed by the plaintiffs should be Rs. 13,09,000/- and for the money receipts they are liable to pay Rs. 55/-. Therefore, the plaintiffs were directed to deposit Rs. 13,09,055/-.
5. The aforesaid direction to deposit Rs. 13,09,055/- and other consequential orders are the subject-matter of these two revisional applications.
6. Mr. Banerjee, the learned Senior Advocate appearing on behalf of the plaintiffs has raised threefold submissions.
7. First, Mr. Banerjee contends that the duty to calculate the amount rests with the Court and such duty cannot be delegated to the sheristadar. I am however not at all impressed by such submission. It appears from the records that after submission of the report by sheristadar, the Court itself verified that amount and approved the same. Thus, finally the Court passed the ultimate order.
8. Secondly, Mr. Banerjee contends that the disputed agreement and the receipts not yet having been marked exhibits, it was the duty of the Court to send those papers to the Collector by following the procedure mentioned in Section 38 of the Indian Stamp Act and it was for the Collector to take the appropriate decision.
9. Thirdly, Mr. Banerjee submits, there cannot be any direction for dismissal of the suit for non-payment of amount assessed by the Court. At the most, the Court can pass direction that those documents will not be brought on record. Mr. Banerjee contends that in such circumstances the Court should stay all further proceedings till the final adjudication by the Collector.
10. I now propose to deal with the second and the third contentions of Mr. Banerjee. At the outset it will be profitable to refer to the following provisions contained in the Stamp Act:—
“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 India, 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 proceeding other than a proceeding under Chapter-XII or Chapter-XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898);
(b) in the case of a Judge of a 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—
(a) the State Government may determine what offices shall be deemed to be public offices; and
(b) the State Government may determine who shall be deemed to be persons in charge of public offices.
35. Instruments not 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 ten naye paise only, or a bill-of-exchange or promissory note, 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 any person, from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;
(c) 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;
(d) 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 or Chapter-XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898);
(e) 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 Collector as provided by Section 32 or any other provision of this Act.
38. 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 35 or of duty as provided by Section 37, he shall send, to the Collector, 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 Collector, 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 Collector.
39. Collector's power to refund penalty paid under Section 38, sub-section (1)— (1) When a copy of an instrument is sent to the Collector under Section 38, sub-section (1), 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—
(2) When such instrument has been impounded only because it has been written in contravention of Section 13 or Section 14, the Collector may refund the whole penalty so paid.
40. Collector's power to stamp instruments impounded—(1) When the Collector impounds any instrument under Section 33 or receives any instrument, sent to him, under Section 38, sub-section (2), not being an instrumental, chargeable, with a duty, not exceeding ten naye paise only, or a bill of exchange or promissory note, he shall adopt the following procedure:
(a) if he is of opinion that such instrument is duly stamped or is not chargeable with duty, he shall certify, by endorsement thereon, that it is duly stamped, or that it is not so chargeable, as the case may be;
(b) if he is of opinion that such instrument is chargeable with duty and 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 five rupees; 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:
Provided that, when such instrument has been impounded only because it has been written in contravention of Section 13 or Section 14, the Collector may, if he thinks fit, remit the whole penalty, prescribed by this section.
(2) Every certificate, under Clause (a) of sub-section (1), shall, for the purposes of this Act, be conclusive evidence of the matters stated therein.
(3) Where an instrument has been sent to the Collector under Section 38, sub-section (2), the Collector shall, when he has dealt with it, as provided by this section, return it to the impounding officer.
61. Revision of certain decisions of Courts regarding the sufficiency of stamps—(1) When any Court, in the exercise of its civil or revenue, jurisdiction, or any Criminal Court, in any proceeding under Chapter-XII of Chapter-XXXVI of the Code of Criminal Procedure, 1898, (5 of 1898) makes any order, admitting any instrument, in evidence, as duly stamped, or as not requiring a stamp, or upon payment of duty and a penalty under Section 35 the Court, to which appeals lie from or references are made by, such first-mentioned Court, may, of its own motion or on the application of the Collector, take such order into consideration—
(2) If such Court, after such consideration, is of opinion that such instrument should not have been admitted in evidence without the payment of duty and penalty under Section 35 or without the payment of a higher duty and penalty than those paid, it may record a declaration to that effect, and determine the amount of duty, with which such instrument is chargeable, and may require any person, in whose possession or power such instrument then is, to produce the same, and may impound the same, when produced.
(3) When any declaration has been recorded under sub-section (2), Court, recording the same, shall send, a copy thereof, to the Collector, and, where the instrument, to which it relates, has been impounded or is otherwise in the possession of such Court, shall also send him such instrument.
(4) The Collector may, thereupon, notwithstanding anything contained in the order, admitting such instrument in evidence, or in any certificate, granted under Section 42, or in Section 43; prosecute any person for any offence against the Stamp-law, which the Collector considers him to have committed in respect of such instrument:
Provided that—
(a) no such prosecution shall be instituted where the amount (including duty and penalty), which, according to the determination of such Court, was payable in respect of the instrument under Section 35, is paid to the Collector, unless he thinks that the offence was committed with an intention of evading payment of the proper duty;
(b) except for the purposes of such prosecution, no declaration, made under this section, shall affect the validity of any order, admitting any instrument in evidence, or of any certificate, granted under Section 42.”
11. The effect of the above sections may be summarized thus:—
If a document which is not stamped in accordance with the provisions of the Stamp Act comes before a Court or any person empowered by law or by consent of the parties to receive evidence, the Court or such person is duty bound to impound the same. The Court or such person, however, can admit the document in evidence on payment of the duty and penalty specified in proviso (a) to Section 35. Once the document is so admitted, an authenticated copy thereof together with a certificate in writing, along with the amount so collected, shall be sent to the Collector by the Court or the person, as the case may be; on the other hand, if the person who produced such document is dissatisfied with the decision of the Court as regards the classification of the document or the amount of duty and penalty assessed, Section 38(2) of the Act gives an option to such person to apply to the Court for sending the original document to the Collector. If the document was produced not before the Court but before a person empowered to take evidence by law or by consent of the parties, the same option is available.
12. If the original document is sent to the Collector in terms of Section 38(2), the Collector will follow the procedure provided in Section 40. According to such provision, if the original document is sent to the Collector under Section 38(2), he is required to come to a conclusion about the duty payable and the penalty to be imposed. After collecting the duty and penalty, if any, it is his duty to send back the original document to the Court or the person who sent the document to the Collector on the prayer of the party.
13. In a case where the Court or person impounding the document refers the matter to the Collector in terms of Section 38(1) of the Act the procedure is different. In such a case, the original document is retained by the impounding authority and only an authenticated copy and the amount collected as duty and penalty are sent to the Collector. The Collector, in such type of a case, has two courses open to him. The first one is provided in Section 39 according to which he can refund the penalty in part or as a whole as mentioned therein. The other course is provided in Section 61 of the Act. That section authorises the Collector to apply to the higher Court mentioned therein disputing the decision of the Court if the Collector is of the opinion that the duty and the penalty collected by the Court is not in accordance with law and that the Court has collected a lesser amount than what is payable. In such a case, the higher Court will decide the question and send its decision to the Collector for realization of the excess amount, if found payable.
14. It is therefore clear that a Court cannot force a party, producing a document, to pay the duty and penalty assessed by it and to have the document admitted in evidence. It is for the party to elect whether it will accept the assessment of the Court and will get the document admitted in evidence or to apply to the Court to send the original document under Section 38; but if a party decides to apply for sending the document in terms of Section 38(2) of the Act, it cannot, at the same time, ask the Court to stay the suit pending the decision by the Collector under Section 40.
15. The scheme provided in the Stamp Act is exhaustive and does not approve such course.
16. I thus dispose of these revisional applications by directing the plaintiffs either to pay the amount assessed by the Court within a week from date and to proceed with the suit or to apply in terms of Section 38(2) of the Act. If the petitioners adopt the latter course, the Court will send the original documents to the Collector and will proceed to decide the suit as if those documents have not been produced before Court for being admitted in evidence. But, the Court will in no case adjourn hearing of the suit for getting a decision from the Collector. The Court will also not dismiss the suit for non-deposit of the amount assessed by it.
17. These revisional applications are thus disposed of. No costs.
18. S.K.G