THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.1239 of 2011 Date:23rd August, 2011 Between: Mothukuru Lakshmi Kanthamma W/o.Venkateswarlu, House wife, R/o.D.No.26/310, Bangaraiah Kottalu, Vasanthapeta, Produddatur – 516 360, Kadapa District. .....Petitioner/Plaintiff AND Patnam Ramesh, S/o.Govindappa, Occu: Construction and Executive Engineer, R/o.D.No.27/464-A, Rameswaram, Near Chowdeswari Temple, Proddatur, Kadapa District. .....Respondent/Defendant *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.1239 of 2011 ORDER: This Civil Revision Petition is directed against the order, dated 27.09.2010 passed in O.S.No.46 of 2008 on the file of the Senior Civil Judge, Proddatur, Kadapa District, whereby and whereunder, the learned Senior Civil Judge impounded the agreement of sale, dated 04.02.2004, and directed the petitioner/plaintiff to pay the stamp duty and penalty by 21.10.2010. 2. Background facts, in a nutshell, leading to filing of this revision by the petitioner/plaintiff are: The petitioner is the plaintiff and the respondent is the defendant in O.S.No.46 of 2008 on the file of the Senior Civil Judge, Proddatur. The petitioner/plaintiff filed the suit for specific performance of agreement of sale, dated 04.02.2004, executed by the respondent/defendant. She claims to have paid the sale consideration on 04.02.2004 and thereupon, the respondent/defendant put her in possession of the property covered under the agreement of sale. The respondent/defendant has also handed over the original registered sale deed, dated 15.04.2003 to the petitioner/plaintiff. When the respondent/defendant failed to execute the registered sale deed pursuant to the agreement of sale, dated 04.02.2004, the petitioner/plaintiff filed the suit seeking the following reliefs: “The plaintiff therefore prayed that the Honourable Court be pleased to pass decree and judgment in favour of the plaintiff and against the defendant directing the defendant for the following reliefs: 1) directing the defendant for execution of regular registered sale deed in furtherance of agreement of sale, dated 04.02.2004 as a matter of specific performance of agreement of sale and on failure of the defendant the Honourable Court be pleased to execute regular registered sale deed in favour of the plaintiff and on behalf of the defendant under due process of law. 2) Granting permanent injunction restraining the defendant, his successors and assignees from in any way interfering with the peaceful possession and enjoyment of the plaintiff. 3) Granting cost of the suit, and 4) Grant such other and further reliefs as such the Honourable Court deems fit and proper under the circumstances of the suit.” The defendant filed written statement disputing the claim of the plaintiff. The learned Senior Civil Judge settled the issues for trial. When the plaintiff during the course of her evidence sought to mark agreement of sale, dated 04.02.2004, as an exhibit on her behalf, the respondent/defendant raised objection with regard to its admissibility. Thereupon, the learned Senior Civil Judge directed the petitioner/plaintiff to pay the stamp duty and penalty on the said agreement of sale, dated 04.02.2004, by an order dated 27.09.2010. Hence, this revision by the petitioner/plaintiff. 3. The order impugned in the revision reads as hereunder: “The matter is posted today for marking of documents and also for cross- examination of P.W.1. As perused from the chief affidavit of P.W.1, it has come to the notice of this court that the plaintiff has sought for marking of an Agreement of Sale, dated 04.02.2004, which contains a clear recital of delivery of possession of the property agreed to be sold, and it requires stamp duty penalty payable on the said Agreement. But, on perusal of the said Agreement of Sale, the plaintiff has paid only Rs.110/- as stamp duty. In view of Explanation-I, Article 47-A, Schedule 1-A of Indian Stamp Act, 1899, the plaintiff should have paid the stamp duty on the said agreement of sale like a sale deed. Therefore, the matter is posted for payment of stamp duty penalty on the said Agreement of Sale, dated 04.02.2004. Call on 21.10.2010.” 4. Notice before admission came to be issued on 11.04.2011. The respondent/defendant received notice and entered appearance through a counsel. 5. Heard learned counsel appearing for the petitioner/plaintiff and learned counsel appearing for the respondent/defendant. 6. Learned counsel appearing for the petitioner/plaintiff submits that the Court has no power to recover stamp duty and penalty and such power is only vested with the Collector under Section 48 of the Indian Stamp Act, 1899, in which case, the order impugned in the revision is liable to be set aside. In support of his submission, reliance has been placed on the decision of this Court in Y.Vijaya @ Vijaya Laxmi v. Bojja Baghaiah[1]. Leaned counsel also placed reliance on the judgment of the Supreme Court in Peteti Subba Rao v. Anumala S.Narendra[2], wherein it has been held that failure to pay the amount fixed by the trial Court cannot be the sole basis for dismissing the suit. It is trite to note relevant portion in para.6 of the 2nd cited judgment and it is thus: “In a case where the party fails to pay the penalty suggested by the court the document impounded has to be sent to the Collector for the purpose of taking further steps in respect of that document as provided in Section 40 of the Act. The Collector has the power to require the person concerned to pay the proper duty together with a penalty amount which the Collector has to fix in consideration of all aspects involved. The restriction imposed on the Collector in imposing the penalty amount is that under no circumstances the penalty amount shall go beyond ten times the duty or the deficient portion thereof. That is the farthest limit which meant only in very extreme situations the penalty need be imposed up to that limit. It is unnecessary for us to say that the Collector is not required by law to impose the maximum rate of penalty as a matter of course whenever an impounded document is sent to him. He has to take into account various aspects including the financial position of the person concerned.” 7. Learned counsel appearing for the respondent/defendant supported the order impugned in the revision. 8. Indisputably, the petitioner/plaintiff claims that possession has been delivered to her under an agreement of sale, dated 04.02.2004. In Ch.Annapurnamma v. A.Punnayya Sastry[3], a Division Bench of this Court held that the civil Court has jurisdiction to impound a document under Section 33 of the Act. Section 35 debars a document from being admitted in evidence, subject to certain limitations, and if the intention of the party is to have the document admitted, it is imperative to obey the order of impounding authority by paying the duty and penalty, and in case of failure to pay such duty, the Court or Tribunal has no option but to send the document under Section 38(2) to the Collector. In other words, the Court cannot compel the party to have the document admitted in evidence after paying the duty and penalty assessed by the Court, but instead, it has to forward such document as prescribed under Section 38(2). Para.22 of the cited judgment needs to be noted and it is thus: “The second option is obviously under sub-section (2) of Section 38 of the Act. It is needless to observe that in spite of such duty being levied by the Court, if the party makes an application under Section 38(2), he would be doing so at the risk of not getting the document admitted by virtue of the explicit embargo created under Section 35 of the Act. The scheme of the Act does not indicate that the Court cannot compel the party to pay the duty and penalty, and get the document admitted. To put it in another way, as the admission of any document is at the discretion of the party, so also it is the discretion of the party to pay the duty and penalty as determined by the Civil Court or other public authority and failure to do so, would only result in non-admission of the document. So payment of duty after impounding by the Civil Court is the date line between Section 38(1) and 38(2). In case, Section 38(1) is applied, procedure under Section 39 should be followed by the Collector and in case of 38(2), procedure under Section 40 has to be followed.” 9. Indisputably the party has not exercised option to get the document sent to the Collector for impounding. Having not exercised the option, it is impermissible for the petitioner/plaintiff to contend that the Court has no power to impound the agreement of sale. Therefore, there is no flaw in the order impugned in the revision warranting interference of this Court in exercise of power under Article 227 of the Constitution of India. However, the petitioner/plaintiff is at liberty to move an application under Section 38(2) of the Indian Stamp Act, 1899, to send the agreement of sale, dated 04.02.2004, to the Collector. 10. With the above observation, this Civil Revision Petition is dismissed. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:23rd August, 2011. cs THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.1239 of 2011 Date:23rd August, 2011 [1] 2004 (4) ALT 177 [2] (2002) 10 SCC 427 [3] 2000 (3) ALT 159 (D.B.)