1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3468 OF 2010 Raju Babulal Chhabria & Anr. .. Petitioners V/s Clearpet & Ors. .. Respondents Mr. Sahil Mahajan for the petitioners. Mr. Vishal Kunal with Mr. Kamal Patil i/b Divya Shah Associates for respondent nos.1 and 2. CORAM : D.G. KARNIK, J. DATE : 8TH JUNE 2010 P.C. : 1. Heard. 2. Rule. By consent, Rule is made returnable forthwith. 3. This writ petition is directed against the order dated 5th February 2010 passed by the learned Civil Judge, Dadra and Nagar Haveli at Silvassa below Exhibit-94 in Special Civil Suit No.30 of 2002. 4. The defendants made an application that the lease deed (Exhibit-75) and the deed of family arrangement (Exhibit-76) produced by the plaintiffs be impounded. On that application, the learned Judge passed the following order:- 2 “I heard both sides. Perused documents. The original documents be kept on record and xerox copies be sent to Collector for determination of stamp duty according to the Stamp Act. Parties to adduce evidence.” This order is impugned in this petition. 5. Chapter IV of the Indian Stamp Act, 1899 which applies to the present case, contains a provision relating to instruments which are not duly stamped. Section 33 relates to the impounding of instruments. The application was made by the defendants under this provision. Sub-section (1) of section 33 provides that every person having by law or consent of the parties authority to receive evidence before whom any instrument chargeable, in his opinion, with duty is produced shall, if it appears to him that such instrument is not duly stamped, impound the same. Section 33 confers a power on the Court before whom any document is tendered in evidence, to impound the same. The pre-requisite for exercising the power of impounding is that the Judge must form an opinion that the instrument is chargeable with duty but is not duly stamped. Unless such an opinion is formed, 3 the document cannot be impounded. Merely on an ipse dixit of an opposite party that the instrument is not duly stamped, the document cannot be impounded. A judge must form an opinion that the document is not properly stamped and record reasons for opinion for forming such an opinion. In the present case, this has not been done. An order has been passed directing xerox copy to be sent to the Collector without forming an opinion whether the instrument is properly stamped. 6. The learned judge has committed another error. Instead of forming an opinion as to whether the document is properly stamped, he appears to have delegated the power to form an opinion to the Collector by sending a xerox copy to the Collector. 7. In the circumstances, the order cannot stand. The impugned order is accordingly set aside. The learned Judge is directed to pass a fresh order on the application at Exhibit-94 in accordance with law. Rule is made absolute accordingly. (D.G. KARNIK, J.)