THE HON’BLE SRI JUSTICE V.ESWARAIAH Civil Revision Petition No.2366 of 2008 ORDER: Heard the learned counsel for the petitioner and perused the material on record. In spite of service of notice, none appears for contesting respondent Nos.1 and 2. Respondent Nos.1 and 2 filed the suit, in O.S.No.13 of 2005, on the file of the learned Senior Civil Judge, Narsipatnam, for cancellation of the registered sale deeds, dated 12.08.2004 and 29.10.2004, against the petitioner and others. It is stated that prior to execution of the said sale deeds, respondent Nos.1 and 2 have executed an agreement of sale, dated 08.02.2001; that at the time of leading evidence, it has come out that the agreement of sale was impounded by the Registrar of Kotavuratla and that as it is the Revenue Divisional Officer, who is competent to impound the same, the petitioner, who is the second defendant in the suit, filed the present application under Section 38 of the Indian Stamp Act, 1899 (for short the Act’) seeking to send the agreement of sale, dated 08.02.2001, to the Revenue Divisional Officer, Narsipatnam for impounding the stamp duty and penalty to enable him to mark the same. Respondent Nos.1 and 2 have not filed any counter in the said application. The Court below, through its order, dated 20.12.2007, dismissed the said application observing that as per the own showing of the petitioner, the document sought to be impounded was already impounded by the Registrar, Kotavuratla Village and therefore, the question of impounding for the second time does not arise. The Court below further observed that the petitioner filed the said application at a belated stage, and that placing reliance on the judgment of this Court in Union of India (UOI), rep.by its General Manager, S.C.Railways v. Shak Fareed Basha[1], it held that there are no merits in the said application. Now, the only question that arises for consideration is as to whether the petitioner is entitled to impound the document under Section 38 of the Act? Under Section 38(1) of the Act, if the petitioner wants to impound the document by the Court itself, a separate procedure has to be followed. Under Section 38(2) of the Act, if the person so impounding an instrument shall send the original to the Collector. In the instant case, the petitioner sought to send the agreement of sale to the Revenue Divisional Officer, Narsipatnam for impounding. If that be so, I am of the opinion that dismissal of the said application by the Court below on the ground that the document was already impounded by the Registrar and sending the document for the second time for impounding does not arise, is without any justification. Under Section 38 of the Act, the impounding authority is only the Collector. Merely because the petitioner has paid the deficit stamp duty and penalty, it cannot be said that the legal requirements are satisfied. As the power to impound the document vests in the Court and the Collector, the petitioner has exercised his option for impounding the instrument through the Collector and therefore, there cannot be any justification on the part of the Court below in refusing to send the document again for impounding. This Court, while issuing notice before admission on 25.07.2008 granted interim stay and this revision is pending for the last more than two years. In the case of Chintalapudi Annapurnamma and another v. Andukuri Punnayya Sastry and others[2], a Division Bench of this Court held that if a party makes an application under Section 38(2) of the Act, 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, and 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. In the instant case, as the petitioner sought impounding of the document under Section 38(2) of the Act, I am of the opinion that the Court below ought to have sent the original document for impounding, in which case, the procedure under Section 40 of the Act should be followed. The judgment relied on by the Court below has no relevancy to the facts of the case. Accordingly, the impugned order is set aside and the IA stands allowed. The Court below shall take steps for sending the original agreement of sale, dated 08.02.2001, for impounding under Section 38(2) of the Act. The civil revision petition is accordingly allowed. No costs. __________________ (V.ESWARAIAH, J) Dt.09.12.2010 VGB [1] 2006(6) ALD 116 [2] 2000 (3) ALT 159 (DB)